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59th Congress, I SENATE. J Document 

2d Session. S \ No. 257. *■ 



CHOCTAW AND CHICKASAW INDIANS. 




Mr. Clapp presented the following 

HEARINGS BEFORE THE COMMITTEE ON INDIAN AFFAIRS ON 
THE CHOCTAW AND CHICKASAW INDIANS. 



January 30, 1907. — Ordered to be printed. 



Committee on Indian Affairs, 

United States Senate, 
Washington, D. C, January 23, 1907. 
Committee met at 10 o'clock. 

Present : Senators Clapp (chairman) , McCumber, Clark (Wyoming) , 
Long, Warner, vSutherland, Brandegee, Dubois, Clark (Montana), 
Teller, and Stone. 

The committee having under consideration the folloA\ing proposed 
amendment to the Indian appropriation bill — 

That the Secretary of the Interior is hereby authorized and directed to transfer 
from the Choctaw and Chickasaw freedmen rolls to the rolls of citizens by blood of 
said nations, the name of any person who is of Indian blood or descent on either his 
or her mother's or father's side, as shown by either the tribal rolls, the records prepared 
by and in the custody of the Commissioner to the Five Civilized Tribes, or the Depart- 
ment of the Interior, or by any governmental records in the possession of any bureau, 
division, or commission, or any of the departments of the Government, or any of the 
courts of Indian Territory; and persons having rights conferred by this act shall be 
entitled to establish only by evidence then- descent from persons of Indian blood and 
recognized members of the tribes, as appears from any such record: Provided further , 
That nothing herein shall be construed so as to permit the filing of any original appli- 
cation for the enrollment of any person not heretofore, and at the time of the passage 
of this act, enrolled as a freedman of either the Choctaw or Chickasaw nations, or who 
has an undetermined application for such enrollment now pending, it being the jiur- 
pose of this act to provide only for a correction of the em-ollment of persons of Choctaw 
or Chickasaw Indian blood who have been eiu-olled as freedmen of said nations, and 
no limitation of time within which to file original applications, or to perfect appeals, 
heretofore fixed by law, shall be construed as a bar to rights conferred V)y this act; and 
any person so transferred may contest any allotment heretofore made to which he or 
she had a superior right at the time of his or her erroneous enrollment: Provided, how- 
ever. That such contest shall be instituted within ninety days fi'om the date of such 
transfer and that patent has not issued for such allotment. 

in relation to the application of certain persons of mixed Indian and 
negro blood, arbitrarily enrolled as freedmen before the Commission 
to the Five Civilized Tribes, for a transfer of their names from the 
freedmen roll to the roll of citizens by blood of the Choctaw and 
Chickasaw nations. 

Appearances: Webster Ballinger, Albert J. Lee, for petitioners. 

Mr. Ballinger. We are attorneys for applicants of mixed Indian 
and negro blood, who have been enrolled as freedmen and not as citi- 



^^ ^b' ."jKW M Z/Ji^^ 



. ) j ^CHOCTAW AND CHICKASAW INDIANS. 



zens, by reason of their Indian blood, birth, and residence in the 
Choctaw and Chickasaw nations. 

By Mr. Long: 

Q. You seek to have them transferred from the freedmen roll to 
the Indian roll ? — A. Yes, sir. 

Q. Under section 4, Five Civilized Tribes, jou claim that transfer 
can not be made? — A. Yes, sir. 

There are two questions involved in this controversy, viz: 

1. Is a child born to a negro mother, either herself at one time held 
in involuntary servitude, or whose ancestors were once held in invol- 
untary servitude, and whose father was a full-blood Choctaw, or vice 
versa, barred from receiving property conveyed and secured to him 
by the treaties with, and laws of, the United States? 

2. If a strain of blood descending from an ancestor once held in 
involuntary servitude does not Inir a person from taking real and 
personal pro]:)erty under the treaties and laws with and of the United 
States, have such persons been deprived of their legal property 
rights by officers of the Government charged with the dut}" of admin- 
istering the Choctaw and Chickasav\" communal estate and by recent 
indirect and ill-conceived acts of Congress? 

By Mr. Brandegee: 

Q. You quote the language we put in the bill last year? — A. Yes, 
sir. 

Q. Is there anything in any of the supplementary agreements that 
modifies the uses of this treat}" (1830) as to the descendants of these 
people? — A. Not a word can be found in any treaty or law that modi- 
fies any of them. The treaty of 1830 

Mr. Long. There are limitations as to time? 

A. Yes; there are limitations as to time. 

Mr. Ballinger. The question is. Have they been barred of those 
rights by the holding of executive officers? 

Now, let us look to the treaties and laws with and of the United 
States to ascertain what rights were conferred upon what people by 
said treaties and laws. 

TREATY OF 1830. 

Article II of the treaty of 1830 conveyed a tract of land situated 
west of the Mississippi Eiver, and which is the identical land now 
being allotted in severalty to the members of the Choctaw and Chick- 
asaw nations, as follows: 

The United States, under a grant especially to be made by the President of the 
United States, shall cause to be conveyed to the Choctaw Nation a tract of country west 
of the Mississippi River m/ee simple to them and their descendants, to ininre to them while 
they shall exist as a nation and live on it * * * (7 Stat. L., p. 333). 

Q. Do you mean that means legitimate and illegitimate children? — 
A. Senator, I do not represent a single person that is illegitimate, but 
if they are illegitimate children of negro and Indian blood they are, 
under the decisions of the Department of the Interior, entitled to 
enrollment as citizens b}' blood. 

Q. Do you mean that it has never been denied that a child of an 
Indian man and a white woman is entitled to enrollment? — A. Yes. 

Q. Whether married or not? — A. Yes. 

Q. Is that all covered by your brief? — A. That is all in my brief. 

FEB 26 1907 
D. ofD. 



CHOCTAW AND CHICKASAW INDIANS. 3 

By Mr. Brandegee : 

Q. Do you claim that the legislation contained in section 4 is 
void? — A. It raises a unique proposition. It does not say ''a person 
of Indian blood," but it sa^^^s that unless the records in charge of the 
Commission show an application, that no name shall be transferred 
from one roll to another. 

Q. Do vou claim that that legislation contravenes a treaty? — A. 
I do. 

PATENT ISSUED IN 1(S42. 

The patent issued in 1842 under the above treaty conveying the 
land to the Choctaw Nation contained the identical language used in 
the treaty. 

TREATY OF 1837. 

In 1837 a treaty was negotiated by and between the Government 
of the United States and the' Choctaw and Chickasaw nations, under 
which the Chickasaws acquired equal rights in and to the lands then 
held by the Choctaws under the treaty of 1830. Under this treaty 
the Chickasaws were to hold the land on the same terms that the 
Choctaws hold it. 

RIGHTS CONFERRED. 

Now, what rights were conferred u])on what persons by the treaty 
of 1830? That treaty conveyed the lands now being allotted to the 
members of the Choctaw and Chickasaw nations to the Choctaw 
Nation in fee simple to them and their descendants. What did this 
language mean ? The Assistant Attorney-General for the Department 
of the Interior, in a test case known as the case of "Joe and Dillard 
Perry, " instituted for the purpose of ascertaining and determining the 
rights of persons of mixed Indian and negro blood, after an elaborated 
argument, and with three of his assistants sitting with him as a 
court, rendered a decision on February 21, 1905, in which he held: 

The treaty right (referring to the treaty of 1830) was to the Choctaw and Chickasaw 
nations and their descendants. Descendants is a term of wider significance than 
heirs or legitimate issue, and includes those springing from an ancestor, whether legit- 
imate issue or not. 

Mr. McCuMBER. I notice that the language of the treaty is that the 
grant is made to the "nation and their descendants. " Of course, the 
"descendant" would be given the construction you give there. But 
suppose the nation itself, existing as a nation, declares that certain de- 
scendants shall not be considered as a part of their nation, would you 
then consider that this law woidd be considered to cover their descend- 
ants, whether they could be valid members or not? — A. The Choctaw 
and Chickasaw national governments have absolute jurisdiction over 
those persons that they see fit to admit in their membership. They 
may admit and expel any of their members. Such has been the 
decree of the courts. But when a status is fixed by law of Congress 
or by a treaty with the United States the Choctaw and Chickasaw 
nations can not disturb that right. 

Mr. McCuMBER. That certain issue shall not become members — 
issue that is still unborn — would you contend still that they had such a 
fixed status that the nation could not deal with it? — A. Senator, I 



4 CHOCTAW AND CHICKASAW INDIANS. 

most assuredly do. The nation could not, by its own decision, inter- 
fere with those rights; but I will come to that in a moment. 

Mr. Brandegee. Senator McCumber, as to whether the tribe would 
not have a right to determine who sho; Id constitute its members, I do 
not think bears upon the question. 

Mr. Long. Has Congress ever soi ght to determine who were its 
members? — A. In ever}^ Congress act the enrollment of these people 
has been directed. 

Mr. Long. I want to know whether Congress has ever taken from 
the tribes the right to determine who were the members of the tribe? 
Has it ever sought to take from the nation the power to deterimine 
who were its members? — A. Only to a limited extent. The Attorney- 
General holds that where the rights of a person were fixed under a 
treaty the nation can not divest such person of s: ch right. 

That judicial interpretation of the lang\ age of the treaty of 1830 has 
never been modified, changed, or revised, by either the Department of 
Justice or the Assistant Attorney-General's office or any court of this 
country in subsequent cases, b; t on the contrary, it has been strictly 
adhered to. 

And that definition of the word ''descendants" is in strict con- 
formity with the definition of every text writer, authority, or judge 
who has ever attempted to define it. 

Descendants, as defined by Bouvier, vc)l. ], p. 550, are those who have issued from 
an individual, including his children, grancl children, and their children to the 
remotest degree. — Ambler's Reports, p. .327; 2 Brown's Chancery Cases, ch. .30, p. 230; 
1 Roper on Legacies, p. 115. 

Thus, under the treaty of 1830, the above-quoted terms of which 
have never been changed or altered by any subsequent treaty with 
the United States, or law of Congress, a descendant of a Choctaw 
was entitled to enjoy the fruits of the grant to an equal degree with 
2iwj fidl-blood Choctaw. 

The grant thus having been made to the Choctaw Nation and 
their descendants. Congress could not, even if it saw fit to so do, deprive 
a person having a right under that treaty of that right, but Congress 
has never du-ectly attempted to deprive any person of a right fixed 
by that treaty. 

Mr. Justice Gray, in rendering the unanimous opinion of the 
Supreme Court of the United States in the case of Jones v. Meehan 
(reported in 175 U. S., p. 1), says: 

Congress has no constitutional power to settle the rights under a treaty or to affect 
titles already granted by a treaty. 

Now, if Congress could not change or alter the terms of that grant, 
could a law enacted by a tribe or an Indian custom change the terms 
of the grant? I think that no one will seriously so contend. Such 
power was expressly prohibited by the constitutions of those nations. 
The Choctaw constitution adopted in 1860 declares: 

We, the representatives of the people inhabiting the Choctaw Nation, * * * do 
mutually agree with each other to form oiu-selves into a free and independent nation, 
not inconsistent with the Constitution, treaties, and laws of the United States. 

The Chickasaw constitution contains a similar provision. Thus, the 
legislatures or councils of the two nations could not enact any valid 
law that even remotely denied a person a propert}^ right secured to him 
under a treaty with, or law of, the United States. 



CHOCTAW AND CHICKASAW INDIANS. 5 

By iSir. McCuMBER. 

Q. Suppose the grant is as you have stated to ''a nation and their 
descendants;" afterwards tlie nation itself passes a law to the effect — 
assume that this nation has a right to pass a law to the effect — that 
marriages between members of the nation and colored persons are 
prohibited and their offspring shall not be members of its tribe nor 
entitled to any property rights in this tribe, you still insist that they 
would be cut off' from passing legislation of that kind and that every- 
body who would be born from a marriage that would be interdicted 
must necessarily become a member of the tribe and necessarily 
entitled to an interest in tribal funds ? — A. I contend that they could 
not deprive a person of a property right given such person by treatj^ 
with the United States. 

Q. One that may be born ten years from to-day has present 
property rights? — A. I mean to say that property rights attach on 
the birth of the child. The Indian merely enjoys the usufruct of the 
property up to the time of the distribution of the estate and then 
takes with all others per capita. 

Q. I claim that no law is intended to cover descendants for 
all generations, so that a law can be modified that an unborn child 
in fiiturity has no property rights that can not be changed by a 
statute, it is granted to tlie "nation and its descendants." That is, 
the descendants of the members of the tribe of that nation. I do 
not believe that it was ever intended to be construed to mean that 
a nation itself, if it exists as a nation, could not prohibit a marriage 
with a slave and say that those descendants should not become mem- 
bers of the tribe, so that the children of those who have never become 
members of the nation could still inherit. What difference does it 
make who is a member of a tribe? My position is that the tribe 
itself can cut off those membersliips to the tribe in the future, and that 
being unborn at the time and not haying a right at the time, and 
their an-cestors never becoming a member — that is a part of the nation — 
that the offspring of one who is not a member can not hold under it. 

'Mr. Warner. tVliat legislation has there ever been cutting them 
off? — A. There has never been any legislation cutting them off. 
There is nothing in the Choctaw or Chickasaw constitutions or in the 
Indian laws that bars these people of their rights. 

I now come to the treaty of 1866, which has been used by Govern- 
ment officials and the attorneys for the Choctaw and Chickasaw 
nations for the sole purpose of befogging and obscuring the real issues 
involved. That treaty conferred no property rights upon any one, and 
does not in the remotest degree conflict with rights given persons under 
the treaty of 1 830 . All the t reaty of 1 866 did was to declare that persons 
theretofore held in involuntary servitude should be free. In addition 
to this, it provided that if the Choctaw and Chickasaw nations, 
respectively, within two years from the date of the ratification of the 
treaty, adopted lavv'S, rules, and regulations giving all persons of Afri- 
can descent, resident in the nations at the date of the treaty of Fort 
Smith (September 13, 1865), and their descendants, born prior to the 
ratification of the treaty of 1866, all the rights, privileges, and immu- 
nities of any other citizen of said nations, except the right to partici- 
pate equally in the tribal properties, and in lieu thereof gave to each 
such person and his descendant, theretofore held in slavery, 40 acres of 
land each, to be held on the same terms as the Choctaws and Chicka- 



6 CHOCTAW AND CHICKASAW INDIANS. 

saws held it, the Government of the United States would pay to said 
nations the sum of $300,000. It also provided that if those persons of 
African descent who were to receive 40 acres of land, in the event that 
the nations adopted the laws, rules, and regulations giving them this 
right, saw fit to remove from the nations and relinquish their right to 
the said 40 acres of land the Government of the United States would 
pay each of such persons $100. 

Neither of said nations adopted the requisite laws, rules, and regula- 
tions, or any other laws, rules, and regulations within the two years' 
limitation of time provided in the treaty. Nor has the Chickasaw 
Nation at any subsequent time adopted any such laws, rules, and 
regulations. The Choctaw Nation did, however, in 1883 enact laws, 
rules, and regulations conferring all the rights, privileges, and unmu- 
nities, including the right of suffrage, on all persons of African descent 
resident in the Choctaw Nation at the date of the treat}'^ of Fort 
Smith, and their descendants, formerly held in slavery by the Choc- 
taws and Chickasavrs, prior to the ratification of the treaty of 1866. 
Thus, under the laws, rules, and regulations of the Choctaw Nation 
adopted in conformity witli the treaty of 1866 no person of African 
descent born after the ratification of the treaty of 1866, was entitled to 
any land whatsoever or to the same rights, })rivileges, and immunities 
accorded Choctaw citizens. On the contrary, the same act expressly 
provided that the descendants of these people should be subject to the 
permit laws of the Choctaw Nation and allowed to remain in the 
nation during good behavior only. 

Thus, every allotment of 40 acres of land given to ever}^ person of 
African descent in the Chickasaw Nation, whether he was held in 
involuntary servitude or not, or his descendants, w^as a pure govern- 
mental gratuity. Each and every allotment of 40 acres of land given 
to each and every person of African descentr esident in the Choctaw^ 
Nation and born alter the date of the ratification of the treaty of 1866 
has likewise been a pure governmental gratuity, for they had no rights 
under the treaty of 1866. There is and can be, therefore, no conflict 
between property rights given to persons under the treaty of 1830 and 
property rights given to persons under laws, rules, and regulations 
adopted by the Choctaw Nation under and in conformity with the 
provisions of tlie treaty of 1866. 

CONGRESSIONAL ENACTMENTS. 

We now come to the Congressional enactments designed for the 
purpose of the exting" ■ishment of the tribal governments and the 
allotment of the lands of the tribes in severalty. Every Congressional 
enactment, commencing with the act approved March 2, 1889, which 
created the first Commission to the Five Civilized Tribes, and that has 
contained any instr; ctions to the Commission relating to the prepa- 
ration of tribal rolls, has directed the Connnission to prepare the 
rolls in conformity with the treaties and laws with and of the United 
States. Every person enrolled as a Choctaw^ or Chickasaw citizen by 
blood to the present day acquired his right to participate in the dis- 
tribution of the tribal lands and moneys under and by virtue of the 
treaty of 1830, and not under any acts of Congress or tribal laws or 
customs. 



CHOCTAW AND CHICKASAW INDIANS. 7 

ACT OF JUNE 10, 1896. 

The first law conferring jurisdiction on the Commission to the Five 
Civihzed Tribes to determine the rights of persons to enrolhnent as 
citizens, was the act approved June 10, 1896. That act directed the 
Commission to receive apphcations for citizenship in the Choctaw 
and Chickasaw nations for a period of ninetj^ days after approval 
thereof, and then gave positive instructions to the Commission how 
to determine the applications. It provided: 

That in determining all such applications, said Commission shall respect all of the 
laws of the several nations or tribes, not inconsistent with the laws of the United States, 
and all treaties with either of said nations or tribes. 

The same act confirmed the then-existing tribal rolls. 

Now, what were the powers of the Commission imder this act? 
The Assistant Attornej^-General for the Department of the Interior, 
in a decision rendered March 24, 1905, in the case of Mary Elizabeth 
Martin, defines the powers of the Commission and the rights of appli- 
cants I nder this law to be: 

The ('ommission had no authority to * * * deny citizenship to those entitled 
thereto under treaties and laws with, and of, the United States, or under Indian laws, 
usages, and customs not inconsistent therewith * * * . 

These powers (referring to the powers of the Commission under the above act) were 
to admit to citizenship persons whose right was denied or not recognized by the tribal 
authorities. 

. Mr. Cornish. A statement has been made that is so flagrantly 
incorrect that I want to sa}^ a word abort it. What is known as the 
Mary Elizabeth Martin case. That decision was rendered -by 
Attorney-General Campbell. By peremptory order the decision was 
referred to the Attorney-General of the United States and the decision 
has been reversed. 

Mr. Ballinger. This interpretation nms through every decision in 
these cases. 

The langiage of the statute is so plain that it needs no constrvction 
by a coirt. It says exactly what it means and that meaning is clear. 

The object of that act was to sec ire the enrollment of the very 
class of people we represent and wdio have been denied tlieir property 
rights by tlie Commission and the Department. 

ACT OF ,IUNE 7, 1897. 

Then followed the act of June 7, 1897, which defined " rolls of citizen- 
ship." There liaving been numeror.s tribal rolls prepared l)y different 
tribal officials of the Choctaw and Chickasaw IS^ations, at different 
times, and for vario; s purposes, the question arose as to what par- 
ticular rolls were confirmed by the act of 1896. The act of 1897 
defined them to be: 

The last authenticated rolls of each tribe which have been approved by the council 
of the nation, and the descendants of those appearing on such rolls, and such additional 
names and their descendants as have been subsequently added * ^ * . 

By operation of this law, as declared by the Assistant Attorne^^- 
General for the Department of the Interior, in the case of Mary Eliz- 
abeth Martin — 

descendants of persons on a confirmed roll were defined and regarded as on the roll 
where their parents were found, whether themselves actually on such rolls or not, and 
althoug-h born after the rolls were made. 



5 CHOCTAW AXD CHICKASAW INDIANS. 

NO ROLLS CONFIRMED. 

Inqi iry disclosed the fact that the tribal rolls confirmed by the act 
of June 10, 1896, contained many names frai.dulentl}" placed thereon 
by the tribal authorities. It was discovered that no tribal rolls had 
been approved by any tribal coi ncil as required by the act of June 7, 
1897, and therefore no tribal rolls were confirmed by that act. 

Onhf a small percentage of the persons legally entitled to enroll- 
ment in the nations had been enrolled by the Comnfission under the 
act of 1896. The Choctaw and Chickasaw governmental authori- 
ties denied the constitutional power of Congress to prepare tribal 
rolls and allot lands in severalty; the tribal governments refused the 
Commission access to the tribal records; the Commission had no 
power to compel them to deliver up tribal records essential to a proper 
adjudication of ap])lications for citizenship; in short, the Commission 
was rendered powerless to prepare correct and complete tribal rolls. 

ACT OF JUNE 28, 1898. 

Accordiugly these facts were reported to Congress by the Commis- 
sion and the Indian Committee of the House prepared a complete 
and adequate law clothing the Commission with absolute power to 
prepare correct tribal rolls, and giving it plenary power to compel 
all persons having any interest in the Choctaw and Chickasaw nations 
to appear before it for examirjation; to subpoena witnesses and to 
compel them to testify under oath, and to compel the Choctaw and 
Chickasaw tribal governments to deliver over to the Commission 
all tribal rolls and records. In fact, the Commission was given every 
power necessary to the preparation by it of complete and correct 
tribal rolls, and the act directed it so to do. Here are some of the 
directions given the Commission under that act : 

That in making the rolls of citizenship of the several tribes as required by law, 
* * * said C'ommission is authorized and directed to make correct rolls of citizens 
by blood of all the other tribes, eliminating from the tribal rolls such names as may 
have 'been placed thereon by fi'aud or without authority of law, em-olling such only 
as may have lawful right thereto and their descendants born since such rolls were 
made. 

Said Commission shall make such rolls descriptive of the persons thereon, so that 
they may be thereby identified, and it is authorized to take a census of each of said 
tribes, or to adopt any other means by them deemed necessary to enable them to make 
such rolls. They shall have access, to all rolls and records of the several tribes, and 
the United States court in Indian Territory shall haA'e jurisdiction to compel the 
ofhcers of the trilial governments and custodians of such rolls and records to deliver 
same to said Commission, and on their refusal or failure to do so to punish them as for 
contempt; as also to require all citizens of said tribes and persons who should be so 
enrolled to appear before said Commission for em"ollment at such times and places 
as may be fixed by said Commission, and to enforce obedience of all others concerned, 
so far as the same may be necessary, to enable said Commission to make rolls as herein 
required, and to punish anyone who may in any manner or by any means obstruct 
said work. 

It shall make a correct roll of all Choctaw fi-eednian < ntitled to citizenship under 
the treaties and laws of the Choctaw Nation, aud all iheir descendants born to them 
since the date of the treaty. 

It shall make a correct roll of Chickasaw freedmen entitled to any rights or benefits 
under the treaty made in 1866 between the United States and the Choctaw and Chick- 
asaw tribes and their descendants born to them since the date of said treaty, and 40 
acres of land, including their present residences and improvements, shall be allotted 
to each, to be selected, held, and used by them until their rights under said treaty 
shall be determined in such manner as shall hereinafter be provided by Congi'css. 



CHOCTAW AND CHICKASAW INDIANS. 9 

No person shall be em'olled who has not heretofore removed to and in good faith 
settled in the nation in which he claims citizenship. 

The members of said Commission shall, in performing all duties required of them by 
law have authority to administer oaths, examine witnesses, and send for persons and 
papers, and any person who shall willfully and knowingly make any false affidavit or 
oath to any material fact or matter, before any member of said Commission, or before 
any other officer authorized to administer oaths to any affidavit or other paper to 
be filed or oath taken before said Commission, shall be deemed guilty of perjury, and 
on conviction thereof-, shall be punished as for such offenses. 

The rolls to be made and approved by the Secretary of the Interior shall be final, 
and the persons whose names are found thereon with their descendants thereafter 
born to them with such persons as may intermarry according to tribal laws * * * 
shall alone constitute the several tribes which they represent. 

The Commission under this act was directed to prepare tribal rolls 
in accordance with the then existing law. The existing law was 
the treaty of 1830 and the act of 1896 as construed and defined 
by the act of 1897. The treaty granted lands to the Choctaw Nation 
and their descendants and the law directed the Commission to accord 
rights to all persons and their descendants entitled thereto under 
any treaty with, or law of, the United States. 

In every one of these acts we find positive instructions to enroll 
descendants of all jiersons entitled to enrollment under any treaties 
with or laws of the United States. 

The Commission did not do that which it was directed to do. It 
served notice b}- publication and otherwise upon all persons claiming 
rights in the Choctaw and Chickasaw nations to appear before it at 
certain places on certain days. No reference was made in that notice 
to the making of an ap|)lication oi' any kind. The Commission had 
been instructed by the Department that imder the law under which 
it was then proceeding it could not require nor exact applications of 
persons claiming rights in the two nations. But in violation of 
these instructions and the plain language of the statute the Com- 
mission compelled every person of mixed Indian and negro blood 
appearing before it to make an a])plication for the particular kind 
of citizenship claimed by him. It informed all tliis class of persons 
thart they could not be enrolled as citizens by blood unless they had 
been previously recognized by the tribal authorities, which was 
false. 

Q. What do you mean b}^ once he had been recognized by the 
tribes? — A. The Commission construed the ap])earance of the name 
of a person on a tribal roll as evidence of his membership in the tribe 
and informed persons that unless their names appeared on some tribal 
roll it was useless for them to apply, which was false, the law fixing 
no such requisite to enrollment by the Commission. This, too, 
when the Commission had within eight months theretofore informed 
the Department that no reliance whatever could be i^laced in tribal 
rolls pre})ared by the tribal authorities. It informed tlie Department 
that the tribal rolls were loosely kept, any members of the govern- 
ment being at liberty to take them home with him and keep them 
indefinitely and to loan them to his neighbors, and it was because 
of this that Congress gave the Commission the power to purge the 
tribal rolls. 

It went further than this, and no persons of nnxed Indian and 
negro blood were permitted to make applications for enrollment as 
citizens by blood, to which enrollment they were legally entitled, and 
when such persons appeared before it the Commission arbitrarily 



10 CHOCTAW AND CHICKASAW INDIANS. 

wrote across the top of their examination the words: ''In the matter 

of the apphcation of for enrollment as a freedman," and so 

enrolled them. 

The Commission was instructed by the Department that in the 
preparation of citizenship rolls and freedmen rolls it should compel 
each person to appear before it for examination, under oath, his state- 
ment to be taken down by the Commission to be subsequently trans- 
mitted to the Department when these rolls were sent up for ap])roval 
by the Secretary. The Commission in the preparation of these rolls 
did not reo;ard a single one of the several instructions of the statute 
and of the Department. Here are some of the records of the exami- 
nation of these persons : 

In the matter of the application of Lydia Jackson for enrollment as a Chickasaw 
freedman. Lydia Jackson enrolled. 

[Chickasaw freedman card 284.] 

REBECCA SAMUELS. 

I am 28 years old, wife of Parker Samnels, from whom 1 am sepai-aled. My mother 
is Amanda, daughter of John Kemp. I have two children, Ivason Montgomery, aged 
12, Bertha Samuels, aged 7. My husljand is a United States citizen. 

Pauls Valley, September 13, 1898. 

[Chickasaw freedman card ru2.] 
"DOHA M'GEE and children— ANNIE m'gEE. 

Joe Jackson states that: I have a daughter Dora, 28, wife of Jesse McGee. a (Chicka- 
saw. They have children — Annie, 15: Florence, 11; Mattie, 10; John, 7; Allison. 6: 
Wade, 4; Ruby, 3. 

Ardmore, September 20, 1898. 

Mr. Ballinger. This case is not dissimilar from the majority of 
these cases. A'lTien Jesse McGee, the father of these children and 
the husband of Dora, went before the Commission they would not 
let him take with him his wife and children and appear with them 
for examination, but they sent him off to the citizenship tent, where 
Indians were examined. They sent his wife's father off to the freed- 
men tent to answer questions for his daughter and for these children. 
Here is the record of their examination and all that was stated. 
Nine of his children are on the freedmen roll with their mother. The 
last-born child is on the Indian roll with its father. 

Why was that last cliild placed there? The grandfather of these 
children was examined by the Commission for them under the law of 
1898. The Commission put them on the freedmen roll. L'n.der the 
act of last 3'ear, April 26, 1906, \o\i provided that new-born children 
might make application for enrollment, for that kind of enrollment 
which they were entitled to. Old Jesse McGee had someone make 
application for the enrollment of his last-born child, and the Com- 
mission was compelled to put it on the roll of citizens by blood. 

What has been the action of the Indian Office since this question 
was raised before the select committee in Indian Territory? I was 
informed by the Commissioner the other day that they intended to 
take the name of that last child oft' the citizenship roll. A^Tiy? He 
said there must be uniformity, and because it was easier to take that 
name oft" the citizenship roll, where it legally belonged, and put it on 
the freedmen roll, where tliere was no authority of law to place it, 
than to take the names of the other children oft" the freedmen roll and 
put them on the citizenship roll, where they are legally entitled to be. 



CHOCTAW AND CHICKASAW INDIANS. 11 

[Cliickasaw freedman card 5-57.] 

Edahnd Roberts. I am 35 years old, and belonged to Carolina Colbert. My wife, 
Sarah, is 25, and belonged to the Eastmans. Children: Rachae],aged 11; Jamena, 
aged 7; Charley, aged 6; Marcus, aged 4; and Jack, aged 2. Son of Ned Roberts, 
enrolled. 

Ardmore, September 20, 1898. 

FREEDMAN. 

In the matter of the application of Esther Butler to the Commission to the Five 
Civilized Tribes at Alikchi, Ind. T., April 20, 1899, for enrollment as a Choctaw 
freedman, and being duly sworn and examined by Commissioner Needles, she 
testifies as follows: 

Q. What is you name? — A. Esther Butler. 

Q. How old are you? — -A. I can't tell: pretty old. 

Q. \\'ho is your old master? — A. Peter Pitchlynn. 

Q. Was he a Choctaw or Chicka.saw? — A. He was a Choctaw. 

Q. Have you been living here in the nation all your life? — A. Yes, sir. 

Q. Never went out of it? — A. No, sir; I was raised here. 

Q. Got any children Ii\ing with you? — A. No, sir; 1 have .'^ome grandchildren, 
though. 

Q. How many?— A. Three. 

(Enrolled Esther Butler and three grandchildren as Choctaw freedmen.) 

Department of the Interior, 
Commission to the Five Civilized Tribes, 



1 licn"I)y c<M-lify upon my oflicial oath as stenographer to the above-named Commis- 
sion that this transcri])( is a true. lull, and correct transcription of my stenographic 
notes. 

W. A. Smiley. 

Can any sane person contend that the examination record in the 
case of Lydia Jackson sets out any tangible fact upon which her 
statu.s, either as a freedman or an Indian, could have been ascer- 
tained and determined^ All that is contained in the record is: 

In the matter of the application of Lydia Jack.son for enrollment as a Chickasaw 
freedman. Lydia Jackson enrolled. 

Mr. Brandegee. What, in fact, was her quantum of Indian 
blood ? — A. As a matter of fact it appears from the record she had 
very little negro blood; the greater quantum, probably 75 per cent, 
was Indian blood, and she never was held in slavery. 

Q. rnder what act do you claim that the Commission was directed, 
of its own motion, to ascertain who ought to go on the rolls? — A. 
lender the act of June 2S, 1898. 

Mr. Long. And disregard tribal rolls entirely? — A. Disregard 
everything and put only names on the roll that were entitled to be 
put on under any treaty wifh the United States or law of Congress, 
under any treaty or law of the tribes. 

As a matter of fact the statements appearing on these records are 
not the testimony given before the Commission by the ])ersons appear- 
ing. These records contain merely such portions of the statements 
made by persons appearing before the Conunission as the Commission 
saw fit to record. There is, and can be, no possible question as to the 
correctness of my statements. Even where persons attempted to 
make application for enrollment as citizens by blood their written 
applications were returned to them with specified instructions that 
the applications would not be received, but if these persons would 
make applications for enrollment as freedmen the Commission would 
receive them and so enroll them. Here is a sample of the refusal 
of the Commission to receive the applications of these people. 



12 CHOCTAW AND CHICKASAW INDIANS. 

Mr. Ballinger. When Captain McKennon was before the select 
committee sitting at McAlester, the question was asked him, ''Did 
yoii, before these people were enrolled, inquire if they were of Indian 
blood?" He said, "No; the one thing they were looking for was 
negro blood." 

Mr. Brandegee. You claim they were not compelled to make any 
application whatever? — A. None whatever, and even when they 
attempted to comply the Commission absolutely refused. 

Department op the Interior, 
Commission to the Five Civilized Tribes, 

Muskogee, Ind. T., March 16, 1901. 
Prince Butler, Grant, Ind. T. 

Dear Sir: Receipt is hereby acknowledged of the application lor em-oUment as a 
citizen of the Choctaw Nation of George Butler, the infant son of Prince and Mary 
Butler, born April 3, 1900. 

The application is again returned for the reason stated in the Commission's letter 
of the 23d of Feljruary. The mother of the child appears upon our records as listed 
for em-ollment as a Chickasaw freedman. There is inclosed you herewith a new blank 
application, which you will have made out in conformity with tlie corrections made 
in leadpencil upon the application returned you herewith. 

Upon the return of the new application in proper form for the enrollment of the 
child as a freedman the matter will be given further consideration. 
Yours truly, 

, Aciing Coiinnissioner. 

By Mr. Sutherland : 

Q. The effect of that is that the Commission declmed to receive 
an application from this person to be enrolled as a citizen. — A. Yes, 
sir; and that refusal now prevents a correction of his erroneous 
enrollment as a freedman. This, nor no other person, was under the 
act under which he was enrolled, compelled nor authorized to make 
an application. 

Q. The demand and application should be for enrollment as freed- 
men?— A. Wlien the Commission sent out notice to all persons to 
come in and appear before it for examination, that notice did not 
inform these or any other people interested that they would be 
required to make an application. 

Mr. Brandegee : 
Q. What term did they use in that notice requiring them to come 
in? — A. On July 28, 1898, the notice directed them to appear before 
the Commission for examination. 

By Mr. McCujiber : 

Q. The Commission, as I understand it, took the position that 
the fi-eedmen were not entitled, under any circumstances, to be en- 
rolled? — A. Yes, sir. 

Q. They could not be enrolled as citizens, and therefore there was 
no necessity of considering their applications? — A. Yes, sir. 

Mr. C. D. Clark: 
Q. Does the law require the Commission to reduce to writing the 
examination in each case and to show in writing the eligibility of the 
applicant for enrollment ? — A. The law directed it to make complete 
and correct rolls, and gave it the power to subpoena these people and 
witnesses, and the Department directed it to bring these people before 
it and examine them under oath and take down their statement in 
writinsf. 



CiJOC'lAW AND ('HICKASAW INDIAN'S. I'd 

By Mr. Long : 

Q. Has Cono;res.s ever closed the rolls of this Commission? — A. 
Yes; they were closed in 1902, so far as examination of applicants or 
the reception of applications were concerned. 

Q. And approved them? — A. No; these rolls have not been ap- 
proved. They closed the date for application. The adjndication 
IS still going on. |^ 

By Mr. Braxdegee: 

Q. They didn't tell them to preserve these statements? — A. Yes, 
sir; in order that the Department might know what the examina- 
tion was, for the Secretary, under the law, had to approve these rolls. 

Q. Do you mean the language of the act of 1S98 directed them to 
preserve the testimony? — A. The language of the act does require 
it. The departmental order to the Commission directed them to do 
this. 

The Commission knew of the Indian blood and descent of these 
persons when it arbitrarily enrolled them as freedmen, for on the 
same day that these examination records were prepared the Com- 
mission prepared a field card, which is held by the Commission not 
to be a part of the confirmed records, on which card appears the 
name of their Indian parent and his or her enrollment as an Indian. 
(Field card examined.) 

Mr. McCumber: 
Q. I would like to know if this objection to enrollmg them was not 
pursuant to the Choctaw act of 1883, seventh provision: 

Bf it further enacted. That intcrmaiTiage with such freedmen of African descent 
who were formerly held as slaves of the Choctaws and have become citizens, shall 
not confer any rights of citizenship in this nation, and all fi'eednien who have married 
or who may hereafter many freedwomen, who have become citizens of the Choctaw 
Nation, are suljject to the permit laws and allowed to remain during good behavior 
only. 

Was not that the act under which they declined to admit these 
people? — A. That act, like all acts of the Choctaw and Chickasaw 
nations, was ineffective because it did not prescribe any adequate 
penalty, or render the children of such marriage illegitimate, the 
penalty for violation being fifty lashes on the bare back. 

B}^ Mr. Brandegee: 

Q. In the Commission's decision did it cite that paragraph he has 
read as a basis for its decision? — A. No. The}^ don't refer to these 
laws, but they say this is the Indian custom. 

Q. That act is that a marriage shall not confer any property 
rights? — A. It could not deprive a person of tribal rights which he 
acquired by reason of his Indian blood and descent under the treaty 
of 1830, for such a law would have been in conflict with the Constitu- 
tion, laws, and treaties of the United States. All the decisions of 
the Commission were made verbally in the field. There are no written 
decisions to be found. 

As soon as it was known that the Commission had placed the names 
of these persons on the freedmen rolls, appeal was taken to the 
Department, and in the first case that reached the Department, wdiich 
was referred to the Attorney General's Office, the holding of the Com- 
mission w^as reversed, the Department holding that any person of 



14 CHOCTAW AND CHICKASAW INDIANS. 

Choctaw or Chickasaw blood was entitled to enrollment as a citizen 
by blood, provided only he made an application prior to December 
24, 1902. Under this decision of the Department it" persons could 
show by competent testimony that they had applied to the Commis- 
sion for enrollment as citizens they could secure a correction of their 
previous erroneous enrollment. Accordingly, the Commissioner, on 
January 2, 1906, issued the following notice to all persons who 
claimed they had been erroneously enrolled as freedmen: 

In cases of petitionei's who do not appear from the records of this oifice to have for- 
merly applied for enrollment to the Commission to the Five Civilized Tribes as citi- 
zens of the Choctaw and Chickasaw nations within the time prescribed by law, the 
Commission will require conclusive evidence to the effect that application was made 
or attempted to be made within the time specified for that purpose. 

Before this notice was issued the Commissioner had prepared under 
Departmental instructions a draft of a bill for the j)urpose of winding 
up the affairs of the Five Civilized Tribes. The draft prepared by 
the Commissioner was submitted to the Department of the Interior, 
immediately after the decision in the Joe and Dillard Perry case, 
establishing their rights, which was in November, 1905. The Secre- 
tary appointed a committee composed of officers of the Interior 
Departiiient to examine the proposed draft of a bill prepared by the 
Commissioner. That connnittee supposedl}' examined the bill and 
transmitted it to the Secretary, with a supposedly explanatory report. 
The Secretary of the Interior examined the bill also, as he stated in 
his communication of transmittal. Says he: 

I have carefully examined the provisions of said bill and earnestly recommend that 
the matter receive early and favorable consideration by Congress. 

In that bill was section 4, about which so much complaint has been 
made. No m.an on this committee knew the object sought to be 
accomplished by that section or its evil results, and careful pains were 
taken that every member of this committee should remain in igno- 
rance. The section itself appeared innocent enough. It provided: 

Sec. 4. That no name shall be transferred from the approved freedmen, or any 
other approved rolls of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole tribes, 
respectively, to the roll of citizens by blood, unless the records in charge of the Com- 
missioner to the Five Civilized Tribes show that application for enrollment as a citizen 
by blood was made within the time prescribed by law by or for the party seeking the 
transfer, and said records shall be conclusive evidence as to the fact of such applica- 
tion, unless it be shown by documentary evidence that the Commission to the Five 
Civilized Tribes actually received such application within the time prescribed by law. 

Bypir. Long: 
^ Q. Section 4, as it was prepared by the Interior Department and 
transmitted to Congress, did not contain the last few^ lines? — A. No, 
sir; it did not. 

Q. That was put in at your suggestion? — A. Yes, sir. 

Mr. McCuMBER. And with regard to the words ''record evidence" 
and ''documentary evidence?" — A. That is in the last amendment. 

IVIr. Brandegee. Do jou claim that up to the time of the passage 
of section 4, which made the records of the Commission conclusive 
upon the question of an application, unless documentary evidence is 
offered that these people could be and were entitled to, under the 
law, enrollment as citizens by blood ? — A. Yes, Senator. Until Con- 
gress enacted section 4 they were all entitled to sho^^ by competent 
evidence that they attempted to assert their right to enrollment as 



CHOCTAW AND CHICKASAW INDIANS. 15 

citizeu-s by blood when bolore tlio Commission at any time between 
June 10, 1896, to December 25, 1902 — although the law under which 
they were enrolled did not require any application or assertion of 
right of any kind — the Commission being directed to ascertain this — • 
and upon proof that they did make an assertion of right as Indians 
they could have their names transferred from the freedmen roll to 
the roll of citizens by blood, provided the Commission and the 
Department would consider the case. 

Mr. LoxG. When were the rolls closed^ — A. No exanunations or 
applications could be conducted or received after December 25, 1902. 

\Ir. Ballix(}er. I think that it can be clearly shown — I have 
attempted to do so — that there is no decision of any Department or 
coui't that (Icpiives these people of their rights because of lack of 
Indian blood. That they are citizens of these nations there is no 
(juestion, and the only tiling that has barred them has been the 
ihcgal holding of the Connnis.sion and illegal acts of the Conunission. 
If the Commission had made a record of their applications, made a 
record of their Indian blood, we would not be here to-day. 

In its report the committee pretended to o;ive an explanation of 
the provisions of section 4. Here is what tiiat connnittee said of 
section 4 : 

Sf'cfion I j)r<)liil)ii.-; the tian.-iiT nl' a nainc from the approved Irccdiiien or other 
voIIh of saitl trilics to tlio roll of citizon.s of I)lood unless application for (MiroUnient as 
citizen by l)Iood was made within the time prescribed by law. 

This explanation could not have been intended to explain. If the 
committee had designedh" prepared a statement for the sole purpose 
of concealing the object sought by section 4, it could not have drafted 
a more adroit statement than the one .submitted. The statement 
did not even set out the reqidrements of the section: it did not state 
that at the time the class of persons with which it was dealing were 
examined by the Conuni.ssion : that there was no authority or law to 
compel or require them to make an application, and if >hey made an 
application for enrollment it was of no forc(> and eir( ;t under the 
statute under wliich they were enrolled; it did not state that the 
records which were made conclusive were absolutely silent as to any 
assertion of right to enrollment as a citizen by blood: it did not state 
that the Commission while in the field disregarded the instructions of 
the Department and did not make a record of the actual testimony 
of the applicants: it did not state that if section 4 was enacted into 
law it would deprive 1 .500 per.sons who were, under the treaties and 
laws with and of the United States, entitled to enrollment as Indians 
by reason of their descent, blood, and residence, to such enrollment; 
it did not state the rights of these persons to have their names trans- 
ferred from the fi-eedmen roll to the roll of citizens by blood had been 
judicially ascertained by the Department less than thirty days before 
the transmission of the report to Congress; it did not state these and 
numerous other well-known facts pertinent to an intelligent under- 
standing of this question. But both the committee and the Secre- 
tary stated that they had made a thorough investigation of this 
section and the Secretary earnestly recommended that the bill with 
this section in it receive earl}^ and favorable consideration. 

That section was enacted into law, and what has been the result? 
Not one single name of a person on the freedman roU has been trans- 
ferred to the roll of citizens bv blood. The first case referred to 



It) CHOCTAW AND CHICKASAW IXDIAXS. 

the Assist, lit Attorney-General under section 4 w^s the c.ise of the 
children of Katie Wilson who were the children of a recognized *j,nd 
enrolled Choctaw citizen by blood. After reviewing the Indian 
blood and descent of these children and stating that they were 
enrolled by the Commission under the act of 189S, the Assistant 
Attorney-General says : 

All this, however, is immaterial in view of the provisions ol' section 4 (if the act 
approved April 26, 1906. 

Uiiiler the facts stated by the Commissioner these applicants come clearly within 
the inhibition of this provision of law and their request to be transferred can not be 
granted. It is not claimed in the papers now befon^ me that application for enrollment 
as a citizen by blood was made within the time prescribed l)y law by or for any of 
these persons, nor is there anything to indicate that any of them come within the 
exception in the law. In other words, there is nothing tending to impugn the cor- 
rectness of the statement that no such application was made. 

The law prohibits the transfer of the.se names and the application must ior that 
reason be denied. 

It is not intended by this to express any opinion as to the merits of the case or as 
to what action would have b(H>n proper in the ab.sence of a provision like that of the 
act of April 26, 1906. 

Both the Coninission and the Depart inent have resorted to every 
technicality known to them to deprive these applicants of any 
rights which they have even under section 4. 

In the case of Calvin Newberry et al. the Commissioner held 
that where an application was made to the Comniission in 1906, 
and appears of record on the dockets of the Conirrission, but \\-hich 
was subsocjuently transferred by order of the United States court 
of the southern district of Indian Territory to said court and which 
has never been actually returned to the Commission, that as the 
application is not actually in the custody of the Commissioner the 
party is barred from securing a transfer of his naa.e and the names 
of his children under section 4. The Indian Office affirmed less 
than thirty days ago the holding of the Commissioner in this case. 

This is a fair illustration of the absurd technicalities employed 
by the Commissioner and the Department to defeat the rights of 
these parties. 

The Commissioner and the Department have for the past six 
months invoked a decision approved pro forma by the Secretary, 
and which was v^^ritten by a m.an insane at the timie he prepared 
the decision, and who was within a few days thereafter adjudged 
by the supreme court of the District of Columbia to be insane, and 
by its decree incarcerated in the insane asylum across the river, 
and who has since died in the insane asjdum, to defeat rights not 
defeated by section 4. The decision prepared by this lunatic decided 
questions not in the record, and not before the Department in that 
case for decision, on mere technicalities with reference to the making 
of an application and did not refer to the merits of the case. 

This decision now being stricth^ adhered to by the Commissioner 
and the Department is diametrically opposite to ever}^ decision ren- 
dered by the Assistant Attorney-General for the Department of the 
Interior and the Attorney-General of the United States in these 
cases. This vrould be grotesque were it not for the fact that persons 
are being deprived of property rights by adherence thereto. 

Mr. McCuMBER. He married a negro woman. His children appear 
on the 1895 census roll? — A. I presume the general custom followed 
was the reverse, but the Choctaw and Chickasaw nations have done 
all kinds of funnv things. 



CHOCTAW AND CHICKASAW INDIANS. l7 

It is because of these facts that we are pleading for n-andatory 
leo:ishition that will leave no discretion whatever with either the Com- 
missioner or the Department in the determination of this class of 
cases. 

RIGHTS OF APPLICANTS RECOGNIZED BY TRIBAL LAWS. 

It has been contended by both the Commissioner and the attornej^s 
for the nations that ])ersons of mixed Indian and negro blood had no 
riglit unih'r tribal laws, custon :s, and usages, and therefore they are 
l)arred fro n participating in the distribution of the tril^al property. 
Every adult n ale person of this class is and ever has been, under the 
Choclaw and Chickasaw constitutions, eligible to hold any of Hoe from 
principal chief down to the lowest oflice under the tribal governn-ent. 
The constitutions of the Choctaw and Chickasaw nations prescribe 
the (|ualilications to hold high oflice to be: (1) A free male citizen; (2) a 
lineal descendant of the Choctaw or Chickasaw race; (3) residence in 
the nation. 

Is it possible that a person is eligible to hold any oflice in a nation 
and is not a citizen of that nation^ 

It has been contended by the CoMimissioner and the attorneys for 
the nation that sonie of these persons are illegitimate. That we deny, 
and assert that they are each and every one legitimate; that their 
legiti racy has been declared by the courts of the country. In the 
case of Wall /'. Willia > son (11 Alabama, 830), which was a Choctaw 
case, it was hekl that the ': ere living together of a Choctaw n an and 
wo!nan constituted a valid ■ arriage, and that the abandon;ient of 
the wo'tian by the n'an constituted a valid divorce, and that the chil- 
dren were legitimate. 

In this case the testimony showed conclusively that such was the 
custom of the Choctaw Nation, and it is well known to every person 
familiar with conditions in the Choctaw and Chickasaw nations that 
this was the custom down to the time the Connnission began its work. 
In the case of Wall r. Williamson, rei)orted in the eighth Alabama 
r<>poits, the coiu't says, in ivferring to the tribal laws and customs 
relating to and controlling marriage and divorce among the 
Choctaw s: 

Whatever may have been the rapacity of the husband to abandon his wife, and 
thereby to dissnlve the niarriape if both had become residents of Alabama, after the 
tribe liad departed from it.s limits, it is very clear that the .«ame effect must be given 
to a di.'ssolution of the maniasre l>y the Choctaw law as given to the marriage by the 
same law. I'y that law it appears the husband may at pleasure dis-solve the relation. 
His abandonment is evidence that he has done so. We conceive the same effect must 
be given to this act as would be given a lawful decree in a civilized community dis- 
solving the marriage. However strange it may appear, at this day, that a marriage 
may thus easily be dissolved, the Choctaws are scarcely worse than the Romans, 
who permitted the husband to dismiss his wife for the most frivolous causes. (Story, 
Omn.of Laws, 169.) 

This decision was adopted by the supreme court of the State of 
Missouri in determining a similar qtiestion and the same general prop- 
osition has been adhered to by man}'' other State courts, there being 
no exceptions that we have been able to fmd. 

Many of these persons were legally and lawfully married under the 
laws of the Ignited States, and man}^ more were legally and lawfully 
married under the laws of the Choctaw Nation, but the records of 

S. Doc. 257, 59-2 2 



18 CHOCTAW AND CHICKASAW INDIANS. 

their marriages can not now be produced because no records were kept. 
If by their failure to produce these marriage certificates their chikhen 
are rendered illegitimate, then the great majority of the people of the 
Choctaw and Chickasaw nations are illegitimate, for they can not 
produce marriage certificates or court records, and but few even know 
the import of a marriage license. 

Laws were enacted by the Choctaw and Chickasaw nations pur- 
porting to regulate marriage and divorce, but each and every enact- 
ment is deficient and lacking in all the essentials of a positive law. 
No penalties are prescribed for violation of the laws. It is not pro- 
vided that a marriage contracted contrary to the terms of the law 
shall be invalid or the children born of such a marriage shall be ille- 
gitimate. It is not provided that a divorce procured other than pre- 
scribed in the statute shall be void, and the Choctaw and Chickasaw 
people have treated those laws as a dead letter, wholly disregarding 
them, and continued their social relations under the former tribal 
customs. 

But if everyone of these persons is illegitimate, as has been so 
strenuously contended by both the Commissioner and the attorneys 
for the nation, and which will probably be insisted to-day, they 
would still be entitled to enrollment as citizens by blood of the 
Choctaw and Chickasaw nations if the Commission had performed its 
duty under the act of June 28, 1898, and had placed in the examina- 
tion records a statement of their Indian blood and descent, and the 
actual statements made by them when examined. 

This is not to bare assertion of counsel. It is the finding of the 
Assistant Attorney-General for the Department of the Interior, the 
highest tribunal authorized by law to pass upon their rights. Here is 
what he sa3^s of their rights in an opinion rendered February 21, 1905, 
affh'med in an opinion rendered November 11, 1905, and reaffirmed 
September 26, 1906: 

The ti'eaty right (referring to the treaty of 1830) was to the Choctaw and Chickasaw 
nations and their descendants. Descendants, as pointed out in the case of James W. 
Shu'ley, is a term of wider significance than heirs, or legitimate issue, and includes 
those springing from an ancestor whether legitimate issue or not. The descent of the 
applicants is fully and indubitably shown to be from Charles PeiTy, a Chickasaw by 
blood, recognized by him and born of a union that he and Eliza evidently regarded as a 
lawful one, openly avowed and by the Chickasaw Nation tolerated, which it did not 
compel him to abandon or impose the penalties of its laws upon him for contracting and 
observing. The law properly enough imposed no penalty or contamination of blood 
upon the innocent issue of such a union. I am therefore clearly of the opinion that 
the applicants are entitled to be transfen-ed to the roll of Chickasaws by blood. ;- -, 4 

Q. When was that decision?— A. The tliird one was September 26, 
1906. The second, November 11, 1905. The first one was rendered 
February 21, 1905. 

By IMr. Brandegee : 

Q. November 11, 1905, the Joe and Dillard Perry case was decided, 
under which decision, if it had been under the act of 1906, which we 
adopted, these people would not have been on the roll? — A. No, sir. 

Q. In the decision of that case — the second decision — that under 
this act of July 1, 1902, the rolls having been closed they were not 
entitled to be considered. Then you produced some additional 
evidence showing that they had made application before that? — A. 
The second decision was that if they had not been able to establish by 
competent evidence that they had made application prior to Decern- 



CHOCTAW AND CHICKASAW INDIANS. 19 

ber 24, 1902, and as they could not establish that by competent 
evidence they were barred. Then it was subsequently found that 
they had made an application in writing to the Commission and that it 
was on file, and that that application had not been certified up as a 
part of the record in that case. Then came the tliird decision, of 
September 2G, 1906, in which they were ordered to be enrolled. 

B}^ Mr. Brandegee : 

Q. It was a continuing application? — A. Yes, sir. 
By Mr. Warner: 

Q. At what time is it necessary to show that an application was 
made? — A. Any time between June 10, 1896, down to the 25th day 
of December, 1902. 

Q. Most of these cliildren are children of Indian fathers and negro 
mothers? — A. The majority of them are. 

Q. Are there any excejitions? — A. Yes. There arc instances 
where the offspring is of an Indian woman and negro man. 

ByMr. C. D.Clark: 

Q. In other words, where the negro blood comes from the father? — 
A. Yes, sir. 

Q. What was tlie holding of the Commission? — A. In substance 
this. That where any person had a strain of negro blood in them 
descending from an ancestor once held in involuntar}^ servitude that 
tlie servile blood contaminated and polluted the Indian blood and 
render such person incapable of taking land under a treaty with the 
United States. 

By Mr. Long : 

Q. The Commission followed the rule followed l)y the tribe? — A. 
No, sir. 

Q. It was the rule under which the tribal rolls were alwa^^s con- 
structed, was it not? — ^A. No, sir. 

By Mr. Brandegee : 

Q. What had been the tribal law? — A. There is no tribal law. 

Q. Tribal custom then. They had the tribal rolls as a basis? — A. 
I can not answer tluit. 

Q. Is it not a fact that the tribes did follow the laws of the South- 
ern States at the time the tribes held these slaves? — A. In many 
cases where a person was liberated, for instance, in 1860 they were 
adopted into the nation. 

By Mr. Long : 

Q. When the Commission holds the other way they are following 
what before the war had been the custom of these tribes of Indians. 
Does the same follow here ? — A. I can not say what the tribal cus- 
tom was. 

Q. I am speaking of the custom of making up the rolls of the tribe. 
The roll of negroes and the descendants of mixed blood, where there is 
no special legislation, how they come to make up their rolls? — A. The 
Choctaws appointed committees to go out and prepare tribal rolls. 

Q. On what theory would those committees act when they came to 
a person of mixed blood ? — A. In many instances they enrolled them 
as citizens and their names appear on the tribal rolls. 



20 CHOCTAW AND CHICKASAW INDIANS. 

ByMr.C. D.Clark: 

Q. I understand that these rolls that had been prepared by the 
tribe — the correctness of them is now disputed, both b)^ the Commis- 
sioner and the Five Civilized Tribes? — A. By the tribes themselves. 
Yes, sir; that is a fact. 

Q. And the dispute is made because the rolls had been imperfectly 
made? — A. They were very careless and the officials corrupt in 
making up the rolls. 

Q. In other words, that both the tribes and the Commissioner did 
dispute themi and do dispute now the correctness of the tribal rolls? — 
A. Yes, sir; notwitjistanding tl.at fact, they insist upon adliering to 
those rolls as a basis for citizenship. 

Q. Did the Commission misconstrue the law when they took these 
rolls as a basis? — A. Under the act of 1898 the Commission was 
autliorized to disregard aii}^ tribal rolls. 

Q. What did tlie Commission do. Did tliej disregard all rolls and 
make one of their own? — A. Certainlj^ There were many full 
bloods down there that were not on any tribal roll. 

By Mr. Brandegee : 

Q. New names were added ? — A. Yes, sir. 

Q. And old names were stricken off ?— A. Yes, sir. 

Q. Did the Com^massion make a new roll, disregarding the rolls of 
the tribe? — A. Yes, sir. 

It has never been contended by the Commissioner or the Depart- 
ment that an illegitimate child begotten by an Indian man on a wl ite 
woman, or on a woman of any other race or nationality other than a 
negro, was not entitled to enrollment as a Choctaw or Chickasaw 
citizen by blood. We contend that a cUld begotten on a negro 
woman is entitled to equal rights. It has never been held by the 
Commissioner or the Department that a child of one part Indian 
blood and thirtj^-one parts white blood, whose father or mother was a 
member of the Choctaw or Chickasaw nations was not entitled to 
enrollment as a citizen by blood. We respectfull}^ contend that if 
such is the case that certainly a child of a recognized Indian mother 
or father, possessed of a greater quantum of Indian blood, although of 
negro descent on one side, is equallj^ entitled to recognition. 

We respectfully contend that these persons are Choctaw and Chicka- 
saw citizens by blood; that they are lineal descendants b}^ blood of the 
identical persons to whom the grant was originally made; that they 
acquired their citizenship in the Choctaw and Cliickasaw nations by 
descent fi'om recognized citizens by blood thereof, by birth in the 
nations, and hj continuous and uninterrupted residence therein and 
allegiance thereto. These are the essential elements of citizenship, 
for can it be denied that the child of a recognized citizen of a nation, 
born in the nation, and owing its allegiance to that nation and to no 
other, is a stranger to its parents' allegiance and parents' citizenship ? 
This is the fundamental and universal law of all organized societies 
and States and essential to their continued existence as such. In no 
State and by no government has it ever been held that the offspring 
of a citizen is a born stranger to the parents' allegiance, outcast from 
the parents' civil state and citizen of no other State. Such was not 
the law of the Choctaw Nation as declared by the chief justice of the 
supreme court of the Choctaw Nation. 



CHOCTAW AKD CillCKASAW INDIANS. 21 

I will now show you from a decision of the supreme court of the 
Choctaw Nation that the bh'th of a child to a recognized and enrolled 
parent conferred upon the child full citizensliip, and that the enroll- 
ment of an ancestor carried with it the em'olhnent of his descendants. 

Wm. Buckhplts was admitted to Choctaw citizenship by the supreme 
court of the Choctaw Nation in 1872, imder act of the Choctaw Nation 
of :^Iarch 20, 1872. 

Bucldiolts asked the court to include in the judgment admitting 
him to citizenship '^the names of liis descendants, but was informed 
by the chief justice that this was unnecessary, and that his recog- 
nitio;i as a Choctaw by blood carried with it the recognition of his 
children. A judge of the court testified that such was the custom of 
the court. 

The Commission to the Five Civilized Tribes enrolled the descend- 
ants of Wm. Buckliolts ujider the act of June 28, 1898. 

The attorneys for the Choctaw Nation protested against the enroll- 
ment of Buckholts' descendants by the Commission on the ground that 
the father of these descendants, and son of Wm. Buckholts was living 
at the time of his father's admission by the court, and the court not 
having included his name in the judgment, he could acquire no Choc- 
taw citizciishii) by virtue of the admission of liis father. 

Held by tlie Assistant Attorney-General: ''The supreme court cer- 
tainly had juiisdiction to construe and announce the efl'ect and force 
of Its decree and to conclude the Choctaw Nation by such interpreta- 
tion of its law." 

By Mr. Brandegee: 

Q. Is this the pith of your claim or not, that although in effect 
these freedmen that you represent, or some of them, did apply in the 
field for enrollment, and that there is no record in the Commissioner's 
ollice that any such application was made? — A. Yes, sir. 

Q. And that that being so they are barred by the language of this 
act of ours? Where that is so, there has got to be documentary 
evidence tliat they made application? — A. Yes, sir. 

Q. And th(^ Commission failed to preserve the application?— A. Yes, 
sir. 

Q. And that these people did make application? — A. Yes, sir. 

Q. Cou|)led with this legislation we passed last year, these people 
are barrecl fi-om what would be their rights but for that? — A. Yes, sir. 



Committee on Indian Affairs, 

United States Senate, 
Washington, D. C, January 24, 1907. 

The committee met at 10 o'clock a. m. 

Present: Senators Clapp (chairman), McCumber, Clark, of Wyo- 
ming; Long, Warner, Sutherland, Brandegee, La FoUette, Dubois, 
Clark, of Montana; Teller, and Stone. 

The Chairman. Mr. Cornish, you may proceed. 

Mr. CoRXisii. Mr. Chairman and gentlemen of the committee, I 
shall address myself to the question presented ])y Mr. Ballinger, as to 
the right of certain persons heretofore enrolled as freedmen and alleged 
to be'()f mixed negro and Indian blood and entitled to be enrolled, 
not as freedmen, but as Choctaw and Chickasaw Indians. 



22 CHOCTAW AND CHICKASAW INDIANS. 

I am not insensible of the responsibility that rests upon me as 
one of the representatives of the Choctaws and Chickasaws to so 
place this matter before your committee that you will intelligently 
grasp the issues presented and be able to justly and fairly pass upon 
those issues- and do that which will be right and lawful in the prem- 
ises. The responsibility not only rests upon us as representatives 
of the tribes, but on you as representatives of the great Government 
of the United States, the guardian and protector of the property of 
these Indian tribes. 

Tliis proposition is a new one, and in all of the matters which 
have been presented to your committee for the past ten years, or 
since the Government of the United States began its administration 
of citizenship for the tribes, it has never been heard of until within 
a less time than two years ago. If these contentions should be estab- 
lished and you should feel that this act which is proposed (and 
which would be in violation of every custom and usage of the tribes, 
as well as every law of the Government of the United States and 
every decision of every tribunal of the Government of the United 
States) should be taken it would mean the taking away from the 
Choctaws and Chickasaws of propert}'^ to the value of many millions 
of dollars. It would be revolutionary as to the work of the Gov- 
ernment and would upset its work in citizenship matters for the 
past ten years. 

Now, as a first proposition, it is asked that this proposed action, 
if taken, be based upon a construction of the word ''descendants" 
contained in the treaty of 1830. It is maintained that if it can be 
shown that a particular individual person is the physical progeny 
of an Indian man that he becomes such a descendant as, within 
the meaning of the treaty of 1830, would make him entitled to par- 
ticipate in the distribution of the tribal property of the Choctaws 
and the Chickasaws and to receive property as an individual of the 
value of from $5,000 to $10,000. 

Senator Clark, of Wyoming. Is that the estimated value of each 
one of those shares? 

Mr. Cornish. Yes, sir; that is the estimated value of an allotment 
in the Choctaw and Chickasaw nations— from $5,000 to $10,000. It 
is 320 acres of land, and m addition to thv.t there will be another 
allotment of land, and also participation in the moneys of the tribes. 

Senator Long. Did you say 320 acres of land? 

Mr. Cornish. Yes, sir; an average of 320. If it is poorer land it 
means a greater number of acres, and if it is richer land it may be 160 
acres. 

I suggest, fs I have already stated, that the magnitude of the 
subject requires that the Congress of the United States and this com- 
mittee should certainly move with great deliberation and very slowly 
before upsetting everything that has been done by the tribes for gen- 
erations, and everything which has been done by the Government of 
the United States in the admmistration of these matters, and under 
the laws provided by Congress. 

Now, I return to a discussion of the word "descendants." Gen- 
tlemen, I do not believe that the representatives of the Govern- 
ment of the United States and the representatives of the Indians 
meant that the use of the word "descendant" in the treaty of 
1830 had the meaning contended for. If you should pass a law 



CHOCTAW AND CHICKASAW INDIANS. 23 

at tills time it is not reasonable to suppose that you would give 
that meaning to the use of that word. I believe the use of the word 
"descendants," as used in the treaty of 1830, if it stood alone, 
and if we could look only to that word itself (and we can not look 
only to that word, as I will show j'^ou a little later on, because 
whatever meaning that word may have in that treaty is modified, 
and a flood of light is thro\\Ti on its meanmg by an examination of the 
later treaties) was intended to have a natural, usual, and reasonable 
meaning. It is upon the construction of that word that the whole 
matter is based. I believe that those representatives at that time 
intended to give to that word the meaning which you generally would 
give to the word if you were using it at this time. I do not believe, 
in view of conditions as they exist at tliis time, that this committee 
and this Congress would make use of that word "descendants," in 
referring to those who were members of the Choctaw and the Chick- 
asaw nations, in such a way as to confer property rights upon an 
individual Avho is the illegitimate child of an Indian man and any 
kind of a woman, whether negro or white woman. 

Senator Brandegee. Who are the negotiators of that treaty? 

]\Ir. Cornish. Gen. John Coffey was, I believe, the representative of 
the Government of the United States ; he was the commissioner upon 
the ground. Of course it was afterwards debated and ratified by 
Congress, but he was the commissioner who preliminarily negotiated 
the treaty. 

Now, in order to establish the point which I am now considering, 
conceding that those persons are the physical progeny of an Indian 
man — and we do not concede that — but conceding the fact that 
these 1,000 or 1,500 persons who are now asking property rights at 
the hands of this committee and this Congress were begotten by 
Indian men and are the physical progeny of Indian men upon negro 
women, or other women for that matter, and therefore illegal and 
illegimate children, I do not believe that this committee would give 
that word "descendants" such a definition as would violate every 
law, custom, and usage of the tribes and be at variance with the law 
of the land. 

Senator Sutherland. Is it 3'our idea that the word "descendants" 
is used there in the sense of heirs ? 

Mr. Cornish. I thhik it would be unprofitable for us to look for an 
academic definition of the word ^'descendants" and I do not believe 
that the rights of Chickasaw and Choctaw citizenship should be con- 
ferred or were intended to be conferred upon persons situated as those 
persons were situated. Yes; I will answer your question affirmatively. 

Now, gentlemen, I stated that an examination of the later treaties 
throws a flood of light upon the use of that word in that treaty, and 
when we examine the later treaties it develops, I think, conclusively 
that we can not look to the word "descendant" as used in the treaty 
of 1830 to determine who are to share, or what classes are to share, 
in the distribution. 

The language of the second article of the treaty of 1830, as con- 
tended bj^ counsel for claimants, is as follows: 

* * * The United States, under a grant .specially to be made by the President 
of the United States, shall cause to be conveyed to the Choctaw Nation a tract of coun- 
try west of the Mississippi River, in fee simple, to them and their descendants, to 
insure to them while they shall exist as a nation and live upon it * * * Cand 
then follows the description). 



mmm 



2-1 CHOCTAW AND CHICKASAW INDIANS. 

It is also true that it is provided by the first article of the treaty 
of 1837, under which the Chickasaws purchased an interest in these 
lands, that — 

It is agreed hy the Choctaws that the Chickasaws sliall have the privilege of forming 
a district within the limits of their country, to he held on the same terms ihat the Choc- 
taws now hold it. * * * 

Thej^, however, overlook entirely the treaty of 1855 and the- cir- 
cumstances which rendered it necessary. 

These fully appear from an examination of the treaty itself. 

Its preamble is as follows: 

T\Tiereas the political connections heretofore existing between the Choctaw and 
Chickasaw tribes of Indians have given rise to unhappy and injurious dissensions and 
controversies among them, which renders necessary a readjustment of their relations 
to each other and to the United States; and whereas the United States desire that 
the Choctaw Indians shall relinquish all claim to any territory west of the one hun- 
dredth degi-ee of west longitude, and also to make provision for the permanent settle- 
ment within the Choctaw country of the Wichita and certain other tribes or bands 
of Indians, for which purpose the Choctaws and Chickasaws are willing to lease, on 
reasonable terms, to tlu^ United States that portion of their common territory which 
is west of the ninety-eighth degree of west longitude: and whereas the Choctaws 
contend that by a just and fair construction of the treaty of September 27, 1830, 
they are of right entitled to the net proceeds of the land ceded by them to the United 
States under said treaty, and have proposed that the question'of their right to the 
same, together with the whole subject-matter of their unsettled claims, whether 
national or individual, against the United States, arising under the various provisions 
of said treaty, shall be referred to the Senate of the United States for final adjudication 
and adjustment; and whereas it is necessary, for the simplification and lietter under- 
standing of the relations between the United States and the Choctaw Indians, that all 
their subsisting treaty stipulations be emliodied in one comprehensive instrument: 

Now, therefore, the United States of America, l)y their commissioner, George W. 
Manypenny; the Choctaws, by their commissioners, Peter P. Pitchlynn, Israel 
Fulsom, Samm4 Garland, and Dixon W. Lewis: and the Chickasaws, by their com- 
missioners, Edmund Pickens and Sampson Folsom. do hereby agree and stipulate, 
as follows: 

Article 1. 

The following shall constitute and remain the boundaries of the Choctaw and 
Chickasaw country (and then tlie description). 

And pursuant to an act of Congress approved May 28, 1830, the United States do 
forever secure and guarantee the lands embraced within said limits to the members of 
the Choctaw and Chickasaw tribes, their heirs and successors, to be held in conunon; 
so that each and every member of either tril)e shall have an equal, undivided interest 
in the whole: provided, however, no part thereof shall ever be sold without the 
consent of both tribes; and that said lands shall revert to the United States if said 
Indians and their heirs become extinct or abandon the same. 

It is also provided b^^ article 21 of this agreement, as follows: 

This convention shall supersede and take the place of all former treaties between 
the United States and the Choctaws, and also all treaty stipulations between the United 
States and the Chickasaws and between the Choctaws and Chickasaws, inconsistent 
with this agreement * * * 

That the treaty of 1855, above quoted, is the basis of the title of 
the Choctaws and Chickasaws to their lands, and fixes the terms v pon 
which it is held, is reflected in the treaty of 1866, article 11 of which 
is as follows : 

WTiereas the land occupied by the Choctaw and Chickasaw nations, and described 
in the treaty between the United States and said nations of June 22, 1855, is now held 
by the members of said nations, in c<mimon, under the provisions of said treaty * * * 

If, as contended, the word "descendants," as used in the treaty of 
1830, when abstractly and academically considered, should be held 



CHOCTAW AND CHICKASAW INDIANS. 25 

to mean physical progeny, such a ilefinition, however imjist and 
iinreasonal)le it may be, can have no api)hcation to the lands of the 
Choctaws and Chickasaws and the terms and conditions i nder which 
they are held, for it is expressly agreed by all the contracting parties 
and the parties in interest (the United States and the Choctaws and 
Chickasaws) that the former treaties fixing the rights of the parties 
were i nsatisfactory to all, and that they shoidd be abrogated and set 
aside and that 

* * * it is necfpsary for the simplification and better understanding of the rela- 
tions between the United States and the Choctaw Indians that all theii- subsisting 
treaty stipulations be embodied in one comprehensive instrument. * * * 

And then follows article 1 of the treaty of 1855, pro\Tding that the 
lands referred to are guaranteed to the 

* * * members of the Choctaw and Chickasaw tribes, their heii"s and succes- 
sors, * * * 

and also that said hinds shall revert to tli*' Tnited States if 

* * * said Indians and their heirs 

become extinct or abandon the same. 

No tnnible is encountered in disposing of the contention of the 
prosfMit ajijilicants when the facts in their cases are considered in 
th;' light of the definition of the terms heirs and successors contained 
in the law books. 

Now we come to the treaty of 1S08. The connnittee will under- 
stand lliat the treaty of 1808 is the basic law upon which the (lovern- 
ment of th" Unitf'd Stati s is ]>roceoding at this time for the purpose of 
settling citizr-nsliip and dividing tribal jiro])crty. 

Now, in th-^ law of 1808, and later lav.s and treaties amending the 
san^.e, is contained .th'> authority by which the representatives of the 
Government of the Fnit <1 Stat s can d' termine who are the citizens 
of th" tiibes, and how they shall participate in the tribal property of 
the Choctaws atid Chickasaws. 

S Miator JjOxcj. That is the Curtis Act? 

Mr. C(H{N'isir. '^'es. sir; the act of Jun? 28, 1898. 

Senator L()N"(;. What section? 

Mr. CoRxisH. I have reference now to section 16. After providing 
how the rolls of the Cherokee and Creek nations shall be made, it is 
provided as follows: 

Said Commission is authorized and directed to make correct rolls of the citizens by 
blood of all the other tribes, eliminating from the tribal rolls such names as have ))een 

f)laced thereon by fraud or without authority of law, enrolling such only as may have 
awful riglit thereto, and their descendents born since such rolls were made, with such 
intermarried white persons as may be entitled to Choctaw and Chickasaw citizenship 
under the treaties and laws of said tribe. 

Mr. BallixCtER. The first provision of that section that you have 
just read provides that the rolls shall hv made in accordance with 
existing law? 

Mr. CoRXisJi. Yes. Now, gentlemen, this law, and the later laws 
to which T shall shortly refer, pro\'ides in terms that there is no power 
in any tribunal, or any representative of the Government of the 
United States to em'oll any person who does not a])pear upon some 
one of the tribal rolls of the Choctaw and Chickasaw nations. The 
Government of the United States in making up those rolls and in deter- 
mining who are to participate in tribal property is to be limited in its 



26 CHOCTAW AND CHICKASAW INDIANS. 

jurisdiction and in the jurisdiction of its tribunals by what the tribes 
themselves have done in pursuance of their laws, customs, and 
usages. 

Senator Long. Is it your contention that the Commission could 
take names off but could not put names on ? 

Mr. Cornish. Exactly; that is exactly what I am coming to. 
Now, gentlemen, if there are any persons in this world who have con- 
demned 'the Choctaw and Chickasaw rolls and the acts of the Choc- 
taws and Chickasaws — the Indian themselves — in citizenship matters, 
it has been their own attorneys. We are aware, in the conduct of our 
work, and in the efforts which we have made from the year 1899 to 
the present time to get these matters in such condition as that the 
property of our clients would be protected and the good name of the 
Government of the United States would be left unstained — in the 
pursuit of that work we have discovered a condition which is con- 
ceded by all, that the tribes themselves have not done as they should 
have done in the making up of their citizenship rolls; and that is one 
of the strongest arguments that has been made before Congress and 
the Commission of the Five Civilized Tribes, as well as the other tribu- 
nals of the Government of the United States in support of our con- 
tention from the beginning. But the fault was not in refusing enroll- 
ment to worthy applicants, but the fault was in the wrongful admission 
of hundreds and thousands of unworthy persons by acts of the tribal 
councils and by fraudulent and corrupt acts of their own officials in 
making up those rolls. It is perhaps not in order for me to give 
instances of how persons claiming some strain of Indian blood, by 
arrangement with some tribal officials who had mfluence with the 
council, or who had influence with the enrolling Commission, would 
bring about the placing of their names on tribal rolls wrongfully, and 
in many instances corruptly, for a consideration, and for various 
other reasons. That has been established, and is well known. The 
fault, if there was a fault, was in placing many persons upon those 
tribal rolls who were unworthy and not entitled, but who could enlist 
improper though effective influences. The tribes rarely ever denied 
enrollment to any persons entitled, but the fault was in placing upon 
the rolls many hundreds of persons who were not entitled, through 
corrupt influences. That is a matter of history. The proper 
inquiry is as to what is the law at this time, in determining who are 
citizens and entitled to enrollment and allotment. I state that under 
the laws of 1898 and 1900 and the treaty of 1902 (ratifying the two 
former acts ) that the Government has no power to enroll any person 
who has not been enrolled by the tribes, and the descendants of such 
persons born since such enrollment. 

Throughout this whole discussion I shall exclude all reference to 
Mississippi Choctaws, as their rights are in nowise involved. I say 
that the limit of the jurisdiction of the Government of the United 
States and its tribunals to place upon the final rolls being made at 
this time by your authority, the limit of that jurisdiction is the tribal 
rolls made by the tribes themselves. 

Senator Brandegee. May I ask you a question there? Inas- 
mtich as that is the basis of your whole claim, and as that was Mr. 
Ballinger's claim, I would like to ask you, then — if it is so, as I imder- 
stand you, that you agree with Mr. Ballinger's statement that the 
first article of that treaty compels them to take into consideration 



CHOCTAW AND CHICKASAW INDIANS. 27 

the other treaties of the United States — how is it that you claim that 
the United States has hinited its tribunals in the adjudication of 
these Indian matters solely and alone to the customs of the tribe ? 

Mr. Cornish. I am coming to that; I will make that plain. I have 
read to the committee that part of section 16 of the act of June 28, 
1898, wliich is part of the Atoka Agreement, which provides how 
the rolls shall be made. 

- Senator McCumber. Won't you please read it again? 
p Mr. Cornish. It is as follows: 

Said Commission is authorized and directed — 

I should say that there was a special provision as to the Creek roll 
and certain special provisions as to the Cherokee roll. Tliis is the 
general provision under which the rolls are to be made — 

Said Commission is authorized and directed to make correct rolls of the citizens 
by blood of all the other tribes, eliminating from the tribal rolls such names as may 
have been placed thereon by fraud or without authority of law, enrolling such as may 
have lawful right thereto, and their descendants born since such rolls were made, with 
such intemiarried white persons as may be entitled to Choctaw and Chickasaw citizen- 
ship under the treaties and the laws of said triljes. 

Now, when the Commission of the Five Civilized Tribes began its 
work under that law in the fall of 1898, it held a series of appoint- 
ments; it made a camping trip through the Chickasaw Nation for the 
purpose of receiving applications of the Choctaw and Chickasaw 
Indians and the Choctaw and Chickasaw freedmen under the pro- 
visions of that law. 

Senator McCumber. That law provides for eliminating sixh as 
were improperly on the rolls, and the enrolling of those that belonged 
on the rolls. Do you claim that under that you should give force only 
to the elimination provision and not to the others? 

Mr. Cornish. Exactly. I will make myself perfectly plain on that 
subject as I proceed. 

When the Commission began its work the people who are now in 
that country to the extent of many thoi sands, and who have sworn 
that they are the descendants of some partici lar Choctaw or Chickasaw 
Indian, began to insist before the Commission that it should not only 
receive the applications of persons whose names were iipon some one 
of the tribal rolls, but that it shoidd receive the application and pass 
upon that application upon its merits, of every man, woman, and 
child who was willing to swear that he was the descendant of a Choctaw 
Indian, without any limitation. 

That question perplexed the Commission, and the question of law 
involved was submitted to the then Assistant Attorney-General of 
the Interior Department, Mr. Willis Van Devanter, a gentleman who 
is known for his ability as a lawyer by perhaps every member of this 
committee. That particular inquiry was submitted to Mr. Van 
Devanter, the Assistant Attorney-General for the Interior Department, 
on March 17, 1899, as to whether or not there was any power in the 
Commission to receive the application of any person unless the name 
of that person was upon some one of the tribal rolls of the Choctaw 
and Chickasaw nations. Mr. Van Devanter considered all the laws 
that had been passed prior to that time, and on March 17, 1899, he 
rendered a most comprehensive opinion, which holds, in terms, that 
tary's jurisdiction in his power over the Commission, was fixed by the 



28 CHOCTAW AND CHICK. ASAW INDIANS. 

the limit of the Commission's jurisdiction, and the hiijit of the Secre- 
tribal rolls which had been made by the tribes themselves. I have a 
copy of that opinion and ask that so much of it as bears upon this 
contention be made a part of my remarks. It is as follows: 

"The act of June 28. 1898, supra, prescribes the manner in which the commission is 
to make rolls of citizenship of tne several tribes, and that all names found to have been 
placed upon the tril^al rolls Ijy fraud or without authority of law shall be eliminated, 
and then declares: 

"The rolls so made, when approved, by the Secretary of the Interior, shall be final, 
and the persons whose names are found thereon, with their descendants thereafter born 
to them, with such persons as may intermarry according to tribal laws, shall alone con- 
stitute the several tribes which they represent." 

By the act of 1896 applications for citizenship were required to be made to the com- 
mission within three months after the passage of that act, and to be passed upon by the 
commission within ninety days after made. Provision was also made for applications 
to the court or committee of the several tribes which were to be presented within three 
months and passed upon within thirty days. After the expiration of six months the 
commission was to make rcjlls of citizenship, adding the names of citizens whose right 
might be conferred under that act. After the expiration of the time fixed no new appli- 
cation for citizenship could be received, and the action of the commission upon those 
made within the time fixed was final, in the absence of an appeal to tire court. The act 
of 1897 did not provide for new applications for citizenship. It defined the words 
"rolls of citizenship," used in the act of 189G. and directed that all names appearing 
upon the rolls not coming within that definilion should beopen to investigation by 
the commission for a period of six months after the passage of said act. Neither did 
the act of 1898 make any provision for new applications for citizenship. The com- 
mission was authorized and directed to enroll the persons indicated and to investi- 
gate the right of all other persons whose names are found upon any tribal roll, and to 
omit all such as may have been placed there bj fraud or without authority of law. 
They were not authorized to add any name not found upon some roll of the tribe, except 
those of descendants of persons rightfully upon some roll and persons intermarried with 
members of the tribes and therefore lawfully entitled to enrollment. 

I msh in tliis discussion to draw clearly tliis distinction: The juris- 
diction wliich th? Government of the United States is seeking to exer- 
cise at tliis tims is not to admit persons to citizensliip. There is a 
distinction, and I hope I will be able to make mysalf clear on that 
point; there is a distinction, and a radical distinction, between admis- 
sion to citizenship and the making up of tribal rolls. In 1896 Con- 
gress saw fit to take from the tribes the power to admit to citizenship, 
and as a result of that determination by Congress the act of June 10, 
1896, was passed. That act provided that the tribal rolls, as then 
existing, should be confirmed, and that the Commission, as the repre- 
sentatives of the Government of the United States, should for three 
months have power to receive applications of persons who wished to 
be added to those rolls or admitted to citizenship. Under the pro- 
visions of the law of 1896, and under the provisions of that law only, 
has there ever been conferred power upon any tribunal, by the Con- 
gress of the United States, to admit the citizenship. 

Senator Long. Persons not on the rolls? 

Mr. Cornish. Persons not on the rolls and not in the enjo3'ment of 
a tribal status. Mr. Van Devanter considers that question most 
comprehensively in his opinion, to which I have referred. 

Senator McCumber. That is, they could not admit to citizenship, 
and he so declared. 

Mr. Cornish. And not place them on the tribal rolls ; no, sir. 

Senator McCumber. I can see the distinction. 

Mr. Cornish. But I shall show later on, after I have concluded my 
discussion of the law of 1896, that the limit of power to the Commis- 
sion to enroll persons are the rolls themselves and admissions under 



CHOCTAW AXD CHICKASAW INDIANS. 29 

the law of 1896. Those are the two sources, and the two sources 
alone, from which the Commission and the Secretary of the Interior 
may at this time draw the crude material from wliich a perfect roll 
may bo made. I say th*^ only power vrhich Congress has ever con- 
ferred upon any tribunal to fix in a person, not upon a tribal roll, and 
not in tlie enjoyment of the tribal status, was contained in the act of 
June 10, 1896, and a consideration of that act has nothino- to do with 
the consideration of these cases. 

The committee v\'ill understand that it was under the act of June 
10, 1896, that the applications of iran}' thousands of persons were 
filed. They were passed on by the Coirimission, and an appeal was 
taken to the United vStates court, and those are the persons v.ho are 
known as the "court clai'rants." Those persons had nothing to do 
with this class of persons. The persons who applied in 1896 \vere 
passed upon by the Comn ission. They were given the right to take 
an appeal to the United States court, or it was provided that the 
tribes n ight appeal, and the United States court passed fi.nally on 
those cases. It was contended later by the tribes that fraud and 
perjury and wrongdoing had been done in the trial of those cases by 
the United States courts to such an extent that relief should be pro- 
vided, and the Choctaw and Chickasaw citizenship court was created. 
Thus the entire class of persons arising under the act of 1896 was 
disposed of. 

I now repeat the statement that there has never been and that 
there is not now any power vested in any tribunal of the Governn ent 
of the United States to ad- it to citizenship, except that power con- 
ferred upon the Commission to the Five Civilized Tribes and the 
United States court under the provisions of the act of June 10, 1896. 

That which the Government of the United States has sought to do 
since 1898 has not been to fix the status of any person but to n ake 
over the tribal rolls, and to take as a basis the crude n aterial which 
had been furnished the Comn ission and the courts in 1896 and by the 
tribes in their tribal rolls. The status of such persons as were adn it- 
ted under that law of 1896 was just the san e as if they had been put 
on the tribal rolls. After the law of 1896 was passed Congress said to 
the Comn ission "You shall n ake up the tribal rolls, and in doing 
that you shall look to two sources, and to two sources only, the tribal 
rolls and admissions to citizenship under the law of 1896." Now, 
under this law of 1898 the Con^n ission proceeded to do that. 

Mr. Ballinger. Will you please read that provision of the law? 

Mr. Cornish. I will n ake n yself clear as to that, Mr. Ballinger. 

The CIIAIR^[AN. Was not that the law that also refers to the treaties ? 

Mr. Cornish. Yes, sir; the law of 1898. Now, when the Commis- 
sion proceeded to do that thing, to wit, to make up the rolls from 
those two sources, a question arose, as I stated, as to a proper con- 
struction of that law, for the purpose of fixing the Commission's 
jurisdiction. It was upon the law of 1898 and the question of the 
Comn ission's jurisdiction thereunder that the decision to which I 
have referred the comm ittee was rendered. 

Now after that decision was rendered those persons who were 
interested were still not willing to accept the law as declared by Mr. 
Van Devanter, and then it was that Congress w^as asked in the 3'ear 
1900 — two years after the passage of this law — to construe that law 
of 1898 and'sav what it meant. That is found in the act of May 31, 
1900. 



iJO CHOCTAW AND CHICKASAW INDIANS. 

Mr. Ballinger. I do not want to interfere, but won't you please 
read the act of 1896? 

Mr. Cornish. I do not think that is a proper requirement at this 
time. 

The Chairman. I think, Mr. Balhnger, unless you desire to call 
attention to some manifest misstatement of Mr. Cornish, j^ou should 
permit him to proceed without interruption. 

Mr. Cornish. A manifest misstatement I do not object to, but I do 
not believe it is quite fair to ask that my argument be directed along 
the lines suggested by the opposing counsel. 

Now, as I say, the law of 1898 was passed and the Commission pro- 
ceeded under its construction of that law and the question arose as to 
its power and jurisdiction. The question of law was subiuitted to 
Mr. Van Devanter, and he rendered a most comprehensive opinion, 
declaring what the Commission's jurisdiction was, and still those 
applicants bombarded the Coiamission from Texas and Arkansas and 
various other States, and then it was that the law of 1898 was defined, 
or construed, and the construction contained in the act of May 31, 
1900, is merely a reflection of the construction placed by Mr. Van 
Devanter on the law of 1898. 

The act of May 31, 1900, is as follows: 

That said Commission shall continue to exercise all authority heretofore conferred 
on it by law. But it shall not receive, consider, or make any record of any application 
of any person for enrollment as a member of any tribe in Indian Territory who has not 
been a recognized citizen thereof, and duly and lawfully enrolled or admitted as such, 
and its refusal of such applications shall be final when approved by the Secretary of 
the Interior; Provided, That any Mississippi Choctaw, duly identified as such by the 
United States Commission to the Five Civilized Tribes, shall have the right, at any 
time, prior to the approval of the final rolls of the Choctaws and Chickasaws by the Sec- 
retary of the Interior, to make settlement within the Choctaw-Chickasaw country, and 
on proof of the fact of bona fide settlement may be enrolled by the said United States 
Commission and by the Secretary of the Interior as Choctaws entitled to allotment; 
Provided further, That all contracts or agreements looking to the sale or incumbrance 
in any way of the lands to be allotted to said Mississippi Choctaws shall be null and 
void. 

I do not see how the position of Congress could be made stronger 
or stated in plainer terms. The law of 1898 was passed, the Com- 
mission properly construed the law, and was proceeding in accord- 
ance with that proper construction, and refused to consider the appli- 
cations of persons unless they could show one of two tilings, either 
that thek names were upon some one of the tribal rolls, or that they 
had been admitted by the Commission or the courts in the exercise of 
their jurisdiction under the law of 1896. 

Then the law was submitted to the Assistant Attorne^^-General for 
the Department of the Interior, and he rendered an opinion affii-ming 
the construction placed on that law by the Commission. Then they 
were still unv\-illing to accept it, and the matter was presented to Con- 
gress and this law was passed. 

Senator Clark, of Wyoming. Judge Van Devanter rendered this 
opinion. Now, by what process were those people that you are 
speaking of still trying to get on the rolls? 

Mr. Cornish. Which people? 

Senator Clark, of Wyoming. The same ones who are represented 
here now. I would like jow to state it right now, if you please. You 
say they were still being bombarded with applications. 

IVir. Cornish. I did not mean Mr. Ballinger's people. 



CHOCTAW AND CHICKASAW INDIANS. 31 

Senator Clark, of Wyoming. Well, anj^body — people who were not 
on the rolls were bombarding to be put on the rolls notwithstanding 
Judge Van Devanter's opinion. Now, to whom did they apply? 

Mr. Cornish. To the Commission. 

Senator Clark, of Wyoming. The Commission wliich rejected them ? 
If the Commissioners were rejecting them, did they then have any 
appeal? 

Mr. Cornish. "Yes, sir; to the Secretar}?- of the Interior. 

Senator Clark, of Wyoming. But the Secretary of the Interior 
had already, through his Assistant Attorney-General, rendered this 
opinion which precluded them. 

Mr. Cornish. Yes, sir. 

Senator Clark, of Wyoming. They did not come to Congress to 
have this interpretation passed. You come to Congress to have that 
passed, so as to stop these continued applications. 

Mr. Cornish. I do not say that we did. We were representing the 
tribes at the time, and I think the suggestion as to the law was made 
by the Department. 

Senator Clark, of Wyoming. I do not mean you personally, but 
the tribes were seeking to have these applications stopped. 

Mr. Cornish. It was st<)])ped by the Secretary of the Interior and 
Mr. Van Devanter. 

Senator Clark, of Wyoming. I understand, but without that 
opinion, or without that declaration of Congress, there was no way 
under the ruling of the Department of the Interior that they could be 
added to the rule anyway. 

Mr. Cornish. No, su-. 

Senator Clark, of Wyoming. So that that was simply a declaration 
of tlie policy of the De])artment at that time. 

Mr. Cornish. Yes, sir; that was tlie proper construction of the 
original law that was passed. 

Mr. McMuRRAY. I desire to say that it has been suggested that we 
are here asking for this law. I wanted to suggest that those people 
are here insisting that this law be liberalized and broadened, and this 
was the conclusion that was reached by the committee. 

Senator Clark, of Wyoming. I had supposed that this was simply a 
declaration that would relieve the Secretary of the Interior from — 

Mr. Cornish. Congress took the responsibility. 

Now, I have anticipated somewhat. Senator Clark asked me how 
those people were bombarding the Commission to the Five Civilized 
Tribes and the Secretary of the Interior, petitioning to have their 
claims passed on upon their merits. I did not have reference to the 
people who are represented by Mr. Ballinger. They were never 
heard of as applicants until less than two years ago. 

I shall briefly give the committee a history of how tliis matter 
arose. This proposition was given birth by Mr. Campbell, present 
law officer for the Interior Department. A great many persons have 
agreed with his view since that time, but he is the pioneer of this 
proposition, and upon the rendition by him, some two years ago, of 
this very remarkable opinion, the inspiration was given these people, 
after their enrollment for a lifetime as fi'eedmen, that they might be 
enrolled as Indians. I did not have reference, in giving early liistory 
of citizenship matters, to these people at all; I had reference to these 
people who came in ox wagons and various other ways from the 



32 CHOCTAW AND CHICKASAW INDIANS. 

various other States when they heard that the Indian land was to be 
divided up . A great many people came from the State of Arkansas and 
the State of Texas, and from other surrounding States, conceiving 
that they probably had rights. We have all hoard the term ''an 
Indian right." There were 50,000 persons — nearly double the present 
citizenship population of the Choctaw and Chickasaw Nation, who 
claimed that they had "a right," and were sufliciently interested to 
move into the Indian country and make application. 

Senator Long. And if they did, it was the best business venture 
they could make. 

Mr. Cornish. Yes, sir. There are 50,000 of them in all who have 
bombarded the Commission from 1898 to the present time, and it has 
taken ail the vrisdom and ingenuit}' of the Government of the United 
States and its representatives to prevent the property of the tribes 
from being absoluteh^ taken away by this horde of adventurers. The 
records show many instances of perjury and wrongdoing, and eveiy- 
thing that should be condemned by men who think rightly. 

Those are the persons I had reference to. The Commission said, 
"You are not on a tribal roll; you have not been admitted by the 
Commission in pursuance of the jurisdiction given in the act of 1898, 
and there is no power for us to consider your application on its merits." 
Mr. Van Devanter passed upon the matter, as did also Congress in the 
law which I have just read. 

Now, I shall refer to the persons represented by Mr. Ballinger. 
They had -lothing to do with these proceedings. I'hey have grown 
up in very recent times. The co nmittee will understand that under 
the treaty of 1866, was to the Choctaws and Chickasaws what the 
reconstruction acts were to the other Southern communities. The 
treaty of 1866 was the treaty by which the relations of the tribes 
with the Government of the United States were reestablished. The 
Choctaws and Chickasaws joined with the Southern Confederacy, 
and after the war the treaty of 1866 was made for the purpose of 
reestablishing the tribal relations of those Indians with the Gov- 
ernment of the United States. That treaty provided that the Choc- 
taws and Chickasaws might within two years adopt their slaves — 
their freedrnen (slaves known since technically as freedmen) — and 
confer upon them the right to have, in the event of tribal allotments 
later on, allotments to the amount of 40 acres each, and that if they 
failed to do that they were to forfeit their interest in a certain fund 
of $300,000, which arose from the lease of certain western lands. 

The Choctaws saw fit to pass an act of adoption, conferring this 
right on Choctaw freedmen, and a roll of Choctaw freedm.en was 
made which has been followed by the Government of the United 
States in making up the final rolls of the Choctaw freedmen. The 
Chickasaws did ncft see fit to do that; they preferred to forfeit their 
interests in $300,000 to conferring these property rights upon the freed- 
m.en. From 1866 to 1898 the matter of the status of the Chickasaw 
freedmen stood, in so far as fixing their status as freedmen was con- 
cerned, unadjusted and undetermined, and then it was that the 
Choctaws and Chickasaws, who had never been accused of lack of 
consideration and generosity either to their own people or to any 
people to whom they were under obligation, acting upon the request 
and upon the insistence of the representatives of the Government 
of the United States when the treaty of 1898 was made, agreed to 



CHOCTAW AND CHICKASAW INDIANS. 33 

includp a provision for the allotment of 40 acres each to Chickasaw 
freednien. 

Senator Long. What section? 

Mr. CoRXisH. It is contained in section 29. 

Senator McCumber. Of the law of 1898. 

Mr. Cornish. Yes, sir; in what is known as the Atoka agreement — 

That the Commission to the Five Civilized Tribes shall make a correct roll of 
Chickasaw freedmen. 

Now, the committee will understand that no roll of Chickasaw freed- 
men had been made up to that time; the Choctaws had, but the 
Chickasaws had not adopted their freedmen until this time, so they 
provided that they should make a correct roll of Chickasaw freedmen 

entitled to any rights or benefits under-the treaty made in 1866 between the United 
States and the Choctaw and the Chickasaw tribes and their descendants born to 
them since the date of said treaty. 

That is only for making the roll. Here is what they agreed : 

And forty acres of land, including their present residences and improvements, 
shall be allotted to each, to be selected, held, and used by them until their rights 
under said treaty shall be determined in such manner as shall hereafter be provided 
by act of Congress. 

That was not an ungenerous act on the i)art of the Choctaws and 
Chickasaws. They felt, as a matter of law, that they had the privi- 
lege given them under the treatv of 1860 to adopt these freedmen and 
give tiiem the 40 acres of land "or the forfeit of S300,000. They felt, 
for reasons evidently sufiicient to them, that the better proposition 
would be to forfeit their interest in the $300,000 and not adopt the 
freedmen, but understand, gentlemen, that the freedmen were not 
expelled from the Choctaw and Chickasaw nations; the Chickasaw 
freedir.en had enjoyed all rights of freedmen citizenship; they 'had 
occupied lands without r^uestion and they have been permitted to 
partici])ato in the land, the benefits of the property of the Choctaws 
and Chickasaws from 1866 down to 1898 in all respects as though they 
had been adopted under the provisions of the treaty of 1866. 

So when you came to ]uake the treaty of 1898 the Indians were 
willing to listen to you, and they settled that cpiestion so far as the 
negroes were concerned; they provided that they should be enrolled 
and given 40-acre allotments to be held until such time as Congress 
should make provision for a judicial determination of the question of 
their adoption. 

Now, when the treaty of 1902 was made, the freedmen had been 
enrolled; they had gcme into possession of the land; they had had 
their rights fixed, but there was a controversy between the Cliick- 
asaws and the Government of the United States as to whether or not 
those lands legally belonged to the Chickasaw freedmen, and in the 
treaty of 1902 a provision was inserted that the question of law 
should be referred to the Court of Claims for determination of the 
question of law as to whether or not those freedmen were or w^ere 
not under the treaty of 1866 entitled to the land. We presented 
the suit to the Court of Claims and our views were sustained by 
that court and judgment was rendered against the Government of 
the United States for the value of those lands. The money has 
not been paid as yet, but the decree of the court has been rendered 
and it only remains to determine how many freedmen there are, in 
S. Doc. 257, 59-2 3 



34 CHOCTAW AND CHICKASAW JNDIANS. 

order that it may be determined what sum of money the Govern- 
ment of the United States shall paj' to the Chickasaws. 

Senator Long. Was that case appealed? 

Mr. Cornish. Yes, sir; it was aj^pealed to the Supreme Court of 
the Ignited States and affirmed. 

Now, gentlemen, that is the history of the Chickasaw freedmen, 
as an abstract proposition. I shall now ap])ly it to these persons. 

The Commission proceeded under the law in the fall of 1898 to 
make up the rolls of Choctaw and Chickasaw citizens and Choctaw 
aiid Chickasaw freedmen. The first meeting was held at Stonewall 
in the Chickasaw Nation; the next at Pauls Valley; the next at 
Ardmore; the next at Tishomingo; the next at Lebanon; the 
next at Colbert; the next at Duncan, and the next at Chickasha. 
A wagon trip was made through that country, the Commission 
camping for a considerable time at each appointment. The Choctaw 
and Chickasaw Indians applied to the Conunission to be enrolled 
as Choctaw and Chickasaw citizens. Choctaw and Chickasaw freed- 
men voluntaril}^ applied before that Conmiission at that time, and 
every man, woman, and child residing in that country and represented 
by Mr. Ballinger, at that time voluntarily a})plied to the Conunission 
to be enrolled as Chickasaw freedmen, and ware accordingly enrolled 
in order that the rights wliich were given them by this treaty of 
1898 in the 40 acres of land might be fixed. 

It has i)een suggested that some atlidavits have been (ikd tending 
to show that these people claimed at that time that they were Chick- 
asaw Indians. There are statements in the record made up by the 
select committee in the Indian Territory in which all the circum- 
stances under which those applications were taken are set out by 
Mr. Bixl)y, who is personally known to you gentlemen, and w^ho 
has been actually chairman of that Commission for more than six 
years, who has been its practical bead since the year 1897, in which 
he states that it was not suggest(Hl by a single man, wonum, or 
child in this class, or a single luau, woman, or child who applied as a 
Chickasaw freedman to have their rights estabfished as Chickasaw 
freedmen, that they were entitled to their rights as Choctaw' and 
Chickasaw Indians. That evidence is corroborated by Captain 
McKennon. I do not know how many of you gentlemen are ac- 
quainted with Ca])t. A. S. McKeimon, who had particular charge of 
this work. Mr. Bixby's evidence is in the record. He had charge of 
that part of the Commission's work which had to do with the enroll- 
ment of Indians, and Captain McKennon and his corps of assistants 
had to do with that part of the work which related to the enrollment 
of freedmen. 

They conferred frequently and their testimony is absolutely and 
positively to the effect that this proposition was not heard of at that 
time, and never until the rendition of this remarkable opinion of Mr. 
Campl)eirs. The statement that there w^re persons swarming 
around the Commission and forced to go to the freedmen' s tent — 
that statement is absolutely untrue. I accuse no one of wailful 
misrepresentation, but I do say, in the light of the facts as show*n by 
the record, that the statement is absolutely and unqualifiedly false. 

Senator McCumber. May it not be true that many of the freedmen 
in attempting to ascertain where they should go to be enrolled 
might probably have gone to the wrong place, and have been directed 



( ilOCTAW AXD CHICKASAW l^■L)IA^'S. 85 

to ti'o lo the other, and that iiuiiiy of those who were entitled to be 
enroUed as members of the tribe might have gone to the wrong 
j^hice and have been directed to the right place? 

Mr. Cornish. Mr. Bixby and Captain McKennon say not. Their 
testimony covers that point conclusively. 

Senator McCumber. It wovdd be strange if they did not. 

Mr. Cornish. Of course, some might have gotten into the wrong 
tent. 

Senator Clark, of Wyoming. I have an indistinct recollection of 
something on that point coining out in the testimony. The two 
classes of Indians, by blood, and the freedmen, did they have at each 
of those places representatives to direct their people? 

Mr. Cornish. Yes, sir. 

Senator Clark, of Wyoming. 1 have an iinhstinct recollection of 
something of that sort — that the evidence was that they were mis- 
(hrected. 

Mr. Cornish. 1 am perfectly willing, if this connnittee has authority 
to administer oaths, to make a sworn statement with regard to that. 

Tlie Chairman. Of course the committee has the power to admin- 
ister oaths. 

Mr. Cornish. I wish to make a statement myself. I want the 
committee to uniU^rstand that that is not the fact. As I understand, 
you want (h>(inite information on that ])oint at this time. I was an 
emj)l()vee of the Comniission to the Five Civihzed Tribes myself 
at this time, and 

The Chair.man. To save any (piestion, Senator Clark, 1 do not 
think tliere is any cpu'stion whatever that the committee can admin- 
ister oaths. 

Senator ('LA It K, of Wyoming. Certaiidy not. 

vSenator McCi muk!:. WC can get along jist as well with it as with- 
out it. 

The Chairman, 1 iindeistaiid that you are a member of the bar, 
.Mr. Cornish. 

Mr. Cornish. Yes. sir. I went with the Commissicm in Septem- 
ber, ISOS, as one of its emj)lovees. I am a stenographer, and was a 
stenographer before I began to practice law, and I was the clerk or the 
assistant to Ca|)tain Mclvennon. I took these applications myself, 
in fact, 1 took every api)lication that is, 1 sat as Captain McKen- 
non's clerk. He was the Commissioner and I was his clerk to take 
down such data as he dictated and such things as he directed with 
reference to a|)plications of Chickasaw freedmen. I was present at 
the making of every individual application in the Chickasaw Nation, 
and I have a personal knowledge 

Senator Clark, of Wyoming. Of the freedmen? ' 

Mr. Cornish. Yes, sir; I was in that department, and I have a per- 
sonal knowlcMlge of everything that transpired from the first day of 
the Conunission's appointment at Stonewall to the last day of the 
Commission's appointment at Chickasaw — a j)eriod of two and a half 
months -and I say here, as T said to the Conunission in Indian Terri- 
tory, that I was present when these applications were presented, and 
every application of every Chickasaw freedman was voluntary upon 
his part, an<l there was not a word or a suggestion coming from any 
single individual Chickasaw freedman applicant, or anyone repre- 
senting those applicants, to show that there was any doubt in the 



36 CHOCTAW AND CHICKASAW INDIANS. 

minds of those people as to what their rights were, or any controversy 
either in their minds or the minds of anyone else, as to whether they 
were entitled to enrollment as Indians. They had applied as freed- 
men, as they had always been, and were so enrolled. 

Senator Brandegee. Were you in the tent where the applicants 
for enrollment by blood applied? 

Mr. Cornish. Occasionally I was; I was the only stenographer 
with the Commission at the time, and when any qi.estion of fact 
arose in the tent where they were enrolling Indians they would send 
for me to come over and report the testimony in a particular case 
of the application of an Indian; but to that extent only was I in 
that tent. 

Senator Brandegee. Would you know if a freedman applied to be 
enrolled as an Indian b}- blood in a tent where they were enrolling 
Indians by blood, and whether he was directed to go to the other 
tent or not? 

Mr. Cornish. I do not say that; I am simply speaking about 
matters as far as I know. I said the fact of my participation 

Senator Brandegee. I undertsood you to say that you were famil- 
iar with every single applicant? 

Mr. Cornish. As to the enrollment of freedmen. 

Senator Brandegee. I am assuming that a freedman applies in the 
Indian-by-blood tent for enrollment — you can not state whether 
he was put out of that tent and directed to the other or not. 

Mr. Cornish. I do not attempt to state that. I do state the mat- 
ters which I know of personally. I know everything that transpired 
in the freedmen tent; I was present when everything was done in that 
tent and with regard to that branch of the work, and Iwas only in the 
other tent at stated times. Of course whatever transpired when I 
was in the other tent I have no personal knowledge of; but I know 
personally of everything that transpired in the freedmen tent with 
reference to these particular applicants, and I do know that it was not 
suggested by any of these people that they had rights as Indians. 

Senator La Follette. If there had been any controversies with 
regard to the matter it would have occurred in the other tent, would 
it not ? That is where the stniggle would take place. 

Mr. Cornish. Yes, sir. 

Senator La Follette. And if they were sent out of that tent and 
told that they coidd not register there and the other tent was the only 
place where they coi Id get registration, they would be likely to go 
over there quietly and take what they could get? 

Mr. Cornish. Of course, I do not presume to state of my own 
personal knowledge what transpired in the Indian tent. I will state 
with regard to the statement that I now make that this proposition 
is confirmed by the testimony of ]\Ir. Bixby, who was in charge of 
the work of enrolling Indians, and the testimony of ]Sii\ Hopkins, 
who was the chief clerk of that tent. 

Senator Brandegee. There is an affidavit on file by some gentle- 
man, whose name I do not now remember, who was also an employee 
of the Commission. He was in the tent where the Indians for enroll- 
ment by blood applied, and he makes some statements there which 
you have pronounced to be false. His statement was upon liis o^vti 
knowledge. Your statement of what took place in that tent and 
what did not is of a negative character, and I wanted to know if it 



CHOCTAW AND CHICKASAW INDIANS. 37 

wasjyour intention to brand that statement of his as a falsehood 
here and now. 

Mr. CoRXiSH. Of course, I do not know what that statement is. 

Mr. Ballinger. Mr. Chairman, may I ask Mr. Cornish one ques- 
tion (f 

The Chairman. Yes. 

Mr. Ballinger. Is your name W. A. Smiley? 

Mr. Cornish. My name? No, sir. 

Mr. Ballinger. He was the stenographer who took much of 
this testimony runnino; all the way tlirough it. 

Mr. Cornish. What is the date of the paper that vou hold in your 
hand? 

Mr. Ballinger. April 18, 1899. 

Mr. Cornish. This was in 1898. You are a year off. 

Mr. Ballinger. This was all taken under the same act, was it not? 

Mr. Cornish. These proceedings to wliich I refer were in the 
months of September, October, and November of 1898. 

Mr. Ballinger. These people were examined under the act of 
1898, were they not? 

Mr. Cornish. Yes; but that is not a matter for me to discuss. 
I am perfectly willing that the committee shall understand the facts 
which I state, but the time when these applications were taken was 
in the fall of 1898. 

Senator McCumber. Were any others taken at any other time 
to determine the status of these people? 

Ml-. CoRXLSH. Any applications? 

Senator McCumber. Yes. 

Mr. CoRXisH. The Commission made another tour through the 
<'hoctaw Nation in 1899, Init most of these applications were taken 
in 1898. 

Senator Clark, of Wyoming. As to those, 3'ou have nothing to say? 

Mr. Cornish. No, sir; I was not with them then. 

Senator Sutherland. As I understand you, all you claim in your 
statement as to the facts is that you were in this freedmen tent, 
and that so far as appearances there were concerned there was no 
indication that they were making any claim to be enrolled as freed- 
men under any sort of duress, and that as to what happened in the 
other tent before you went there you do not know anything about? 

Mr. CoRXiSH. No, sir; I do state that my evidence on that point 
is corroborated by Mr. McKennon and Mr. Bixby. 

Senator Long. That evidence is all in here. 

Mr. Cornish. Yes, sir; it is part of the evidence you have of the 
select committee. 

Senator Stone. And they testified that no such thing occurred? 

Mr. Cornish. Yes, sir. 

Senator McCumber. Let me ask you one question. If so impor- 
tant a subject as a claim of right on the part of these freedmen to be 
enrolled as citizens of the tribe had been known or discussed at that 
time, would you have known it? 

Mr. Cornish. I think I would certainly have known it. 

Senator McCumber. Well, was there anything of that kind, or did 
you hear any discussion of that character at all ? 

Mr. Cornish. I have stated that I have no information or knowl- 
edge of it in any way. 



38 CHOCTAW AND CHICKASAW INDIANS. 

Senator McCumber. In either of the tents? 

Mr. CoRNisii. No, sir; I was familiar in a o;eneral way with tlie 
progress of the work of the Coniiiiission, because after the applica- 
tions of the day were over we would meet at ni^rht and woi'k until 
very late, and we were all familiar in a t!;eneral way with what had 
transpired in other branches of the Commission's work, but I have 
absolutely no knowledge of any such claim havino; })een made by any 
one of those people. 

vSenator Sutherland. Let me ask you a question; I have not been 
here all the time, and it may have been covered before. There are 
some affidavits here from persons who claim that they were denied 
the right to be enrolled as citizens. 

Mr. Cornish. I do not understantl so; I have not seen them. 

Senator McCumber. Those affidavits, I understand, were made 
the succeeding year. 

Senator Sutherland. There are some that were made in 1898. 
Now, ilid you examine those affidavits? 

Mr. CoRNLSH. No, sir; I have not seen them. 

Senator Sutherland. Has anybody at any time attempted to 
meet the statements in those affidavits^ 

Mr. Cornish. No, sir; I was coming to that. 

Senator Dubois. I do not know what is stated in those affidavits, 
as I have not read them over, but did any freedmen, in accepting 
his enrollment as a freedman, protest at the same time that he was 
entitled to enrollment as a citizen? 

Mr. Cornish. As to that 1 should have a personal knowledge, be- 
cause I was there. No, sir; they did not, not in a single instance as 
I recall, and 1 think I would recall it if there had Ix^en such an instance. 
With regard to that matter I have a personal knowledge. 

Senator Dubois. 1 do not know whether these affidavits cover 
that or not. 

Senator Sutherland. If they had been directed in those other 
tents to come to the freedmen tent, and had been tokl there that they 
could not be enrolled as citizens would they have been likely to have 
made a protest ? 

^Ii'. Cornish. I think not likely. I want to bo perfectly fair about 
this matter. I think reall}' if a controversy had arisen in the other 
tent, and thrashed out there, and the freedmen had been forced to 
come to the freedmen tent, I do not think any controversy would 
have arisen in the freedmen tent, but in a general way if that had 
arisen I woidd have known of it. 

Senator Sutherland. Who were present in the other tent where 
they were being enrolled as citizens? 

Mr. Cornish. Mr. Bixby and Colonel Needles, of lUinois. 

Senator Sutherland. They were both there all the time ? 

Mr. Cornish. Yes, sir; they had some three or four clerks. Colonel 
Needles was not present when the evidence w^as taken at Muscogee. 

Senator vSutherland. Mr. Bixby was there all the time, was he? 

Mr. Cornish. Yes, sir. 

Senator Sutherland. Now, do both of those gentlemen make 
statements in conflict with these affidavits? 

Mr. Cornish. Colonel Needles does not make anj^ statement at all. 
He is not a member of the Commission. 

Senator Sutherland. He was then. Was any attempt made to 
get a statement from him? He is still living, is he not? 



CHOCTAW AND CMTCKASAW INDIANS. 39 

Mr. CoHMSH. Yes, sir; tho testimony of Mr. Bixby and Captain 
McKennon jtnd the testimony of Mr. Hopkins and my testimony (I 
was clerk to Ca|)tain MeKeimon) was taken. There is no confUct in 
that evidence. I uiuhnstaiul tliat tliese affidavits tend to contradict 
that evidence. That eviih-nce was taken before the Commission in the 
Indian Territory, and there was nothinci: tendin^r to contradict that 
evidence, and I do not think it would he quite reasonable and fair to 
reach a conclusion of fact now, if that particular fact is of importance, 
and 1 presume it is of some importance. I do not believe it would be 
quite fair that tliat conclusion of fact should be resolved in favor of 
these affidavits which have been put in as ajjainst a solenm oral evi- 
dence of the ofliciids of the (Government of the Ignited States, whose 
odicers nuist be j)resumed to liave done their duty. In the absence of 
a clear showini; to tiie contrary, it nnist l)e so presumed. Thev are able 
and (listin«ruished men and «;ood men, so far as anybody knows, and I 
do not believe that their solenui statements, they being representa- 
tives of the Government of the I'nited States, and havino; been pre- 
sumed to liave done their duty, and havinij testified positively and 
une(piivocalIy iis to these fads. should be rejected. I do not believe the 
issue of fact should b<' ri'solved a^^ainst their evidence and in favor of 
these allidavits. taken here and there, all over the country, and put in 
lier<'. 

Senat«»r Stunk. Did your Conunissioner. Captain Mclvennon, send 
Indiitns over to the other tent '. 

Mr. CoKNisii. Not to my knowledije. There is this fact that nmst 
be taken into consideration : Tiiat matter was superintended in a way 
by a conunission of some si.\ or seven members, who re|)resented the 
Indians and who saw to their enrollment and assisted tliem. It was 
a commission conq)osed (»f the leadin»r men of the Choctaw and Chick- 
asaw nations, who sat with Mr. Bi.xby in the enrollment of the Indians; 
not only that, but at the sui;«;estion of the Commission itself, a com- 
mission of freedmen was created for the purpose of sittincr with Cap- 
tain McKennon in the em'ollment of those freedmen. 

Senator liuANDF-CKK. Ill view of your remark, and as I have read 
all this testimony, and these affidavits — and whether it reflects on 
anybody or not, or what the fact is, I do not know — there are affidavits 
thei'e. and there is one affidavit in particufar. i)y the very gentleman 
who you are now speaking of, and who you say is a good man, who 
represented the Choctjiw or Chick; saw freedmen, who states just what 
Was done, and he conq)li.ins that he was ordered to make all of his 
jx'ople go to the freedmen tent if they had any negro blood in them at 
all and they were inclined to l)e enrolled as Indians. 

Mr. CoHNisn. That he states in a gener.d way -at least, I j^resume 
lie does. But the tent j^resided over by Ca])t;iin McKennon was for 
the enrollment of freedmen and the tent presided over by Mr. Bixby 
was for the eni-oUuient of Indians. 

Senator BuAXDECiKK. Xo; he states in a very clear way that they 
were conq)elle(l to go to the other tent in spite of their claims that they 
were entitled to be enrolled as Indians. 

Mr. CoK.Nisii. When the select committee Wiis at Ardniore, this 
man, Charles Cohee, was there. I saw him and we talked of what 
occuri-ed at that time, and when at Ardmore I presumed that this man 
would be brought l)efore your committee; he was there. I had a con- 
versation with him with a view to ascertaining what his evidence 
would be aiul w hether or not he would make a statement which would 



40 CHOCTAW AND CHICKASAW INDIANS. 

conflict with this other evidence, and he did not so state to me. I 
rehearsed with him the facts which occurred at that time, and asked 
him as to those various incidents, and he did not make any statement 
to me of a contrary nature. 

Senator Brandegee. Had you these affidavits at that time ? 

Mr. Cornish. I had not. 

Senator Brandegee. At what date were we at Ardmore ? 

Mr. Cornish. I think about the 18th, 19th, or 20th of November, 
1906. 

Mr. Ballinger. This affidavit was made on the 2Sth day of Novem- 
ber, 1905. 

Mr. Cornish. This man was at Ardmore. I had heard rumors to 
the effect that there were various persons who had ideas as to what 
occurred in 1898, and I saw this man at Ai'dmore and renewed my 
acquaintance with him and expected that he would be brought before 
the committee. He made no statement to me of any knowledge as to 
any facts that would contradict the facts as I understand tliem, as 
well as Mr. Bixby and Mr. Hopkins. He was there, but was not 
brought before the committee. 

Mr. Brandegee. iVi-e you willing to read his affidavit now? 

Mr. Cornish. I have no objection to doing so. 

Mr. Brandegee. I would like to hear it because it brings out the 
])oints in controversy. 

Mr. Cornish. The affidavit is as follows: 

AFKID.WIT OF (HAin.KS COT!!':!-:. 

Umtki) States of .Kmhuka, 

Indian Tenilnry, Southern Judicial Dislricl: 

Charles Cokee. (irsl Innng duly sworn, on oath stales lluU lie is o7 years of age: resi- 
dent of the Cliiekasaw Nation. Indian Territory, and lives at the town of l>er\\'\'n, in 
said nation and Teriitory: that he is ein'olled as a Chickasaw freedman, and that on the 
Lst day of September. I89<S, he was ap])ointed l)y R. N. Harris, governor of the Chicka- 
saw Nation, a member of the committee to sit with the Dawes Commission for the pur- 
pose of identifying applicants for ('nrolbnent as freedmen; .that lie was again appointed 
to the same position by Governor .lohnson in A])ril. 1899, and that he worked every day 
with the Commission (hiring their sittings in the Chicka.saw Nation, and most of tlie 
time duiing tlieir sittings in the ( hoctaw Nation. 

Afhant furtlier states that at the beginning of the work the committee of which he 
was a member in making statements to the Dawes Commission of the status of appli- 
cants made particular mention of those who claimed to have Indian blood; that the 
applications of such persons claiming Indian blood were for awhile received by the 
Commission, but that in a short time, about fifteen days after the committee began its 
sittings, all such applications were rejected by the said Daw'es Commission, and the 
committee of which affiant was a mem))er was informed that thc;se applicants who were 
born to slave mothers or to negro women who were descendants oi slaves, were freed- 
men, and wovdd be enrolled as such only, and the said committee was advised to 
discontinue hearing the statement of applicants as to their Indian l^lood, as in no case 
would they be enrolled as Indian citizens; and that therefore the said conimittee 
from that time on. with possibly a few exceptions, refused to hear statements of per- 
sons of mixed colored blood, of their claim that they were possessed of Indian blood 
in any degree whatever; that the said committee from that time on, in stating to 
the Commission status of applicants, only made mention of such family relations as 
would establish their rights as freedmen, and made no mention whate^•er of the 
existence of Indian l)lood. although in many instances they know applicants were 
possessed of such. 

Charles Cohee. 

Subscribed and sworn to tjefore me this 21st day of November, 1905. 

fsKAL.] J. A. McNaught, 

Notary Public. 
My commission expires March 17, 1900. 



CHOCTAW A^'D CHICKASAW INDIANS. 41 

That statement is not true. This committee was selected bv the 
freedmen. ( )ut of tlie generosity of the Chickasaws this commission of 
freethnen, sitting witli the Commission for the purpose of enrolling the 
freedmen, was paid by the Chickasaws out of the treasury of the 
nation, but this committee was selected by a meeting of negroes for 
that purpose. 

Senator Clark, of Wyoming. Somebody certainly supervised that 
selection. 

Mr. CoKMsii. They had a convention of Chickasaw freedman, or 
an organization, and that association or organization picked out this 
committee. Now, when the matter of the j)ay of the Indian enroll- 
ments came up it was suggested by the Connnission that the Chicka- 
saws should pay this commission, and that was done by warrants on 
the treasury. 

Senator La Follette. As a foundation for that, is it not possible 
that a selection may have been made following the selection of the 
freedmen '. 

Mr. CoHMSH. Of course it is possible, but 1 am sure such was not 
the case. 

Senator La Follette. Your general knowledge and s])ecial ac- 
quaintance would not j)re(lude the possibility of their having made 
some appointment whicli you did not know about (f 

Mr. CoRNLSH. Governor Johnston approved the act wiiicii appro- 
])riate(l money for tliis purj^ose. 

Senator Stone. Do you know anything a!)(>nt that aflidavit ? 

Mr. CoR.NisiL No. sir. 

Senator Sione. Do you know who prepared it '. 

.Mr. CouNisn. 1 (h) not. 

Mr. Albert .1. Lee. I will say that 1 niyself j)iepared it at my 
olhce in Ardmore, Ind. T. 

Senator McCi'MBER. It is stated that for the lirst fifteen days they 
did admit the freedmen to citizenshij). AVhat do von know about 
that '. 

Mr. CoRNLsn. 1 know that nothing of that kind transpired to my 
knowledge, and Mr. Bi.xby states the sair.e. I know also that this 
man Cohee was constantly in the freedn:en tent for the first fifteen 
days and for the whole time. 

Senator M( Cv.mber. When was this sepaiate tent foi- the freedn:en 
established '. 

Mr. Cornish. It was three days before the Connnission began to sit. 

Senator McCimber. Before anything was done? 

Mr. CoRNLsn. Yes, sir. I desire to say that it is not my purpose 
to reflect on anybody, but I do mean to suggest this, with all the 
earnestness 1 can command, that if there is a question of fa('t in this 
pr()])osition, and that fact may influence your disposition of this 
particidar ])roposition, I do not believe it is quite fair and reasonable 
to disregard the positive evidence of Caj)tain McKemion, Mr. Bixby, 
and the various other official subordinates iq)on this proposition and 
overturn the facts which that evidence establishes, or tends to estab- 
lish, upon these affidavits taken and offered in this \vay, when positive 
evidence could have been offered contradicting that orally before the 
select connnittee when in the Indian Territory. 

Senator McCc.mber. The im])()rtant matter, it seems to me, is 
whether thev are entitled under the laws and treaties. 



42 CHOCTAW AND CHICKASAW INDIANS. 

Mr. Cornish. Exacth^; but these alleged facts are urged for the 
purpose of discrediting the Commission. 

Senator Brandegee. But if they were entitled, and entitled under 
the treaty, under a certain construction of that word "desceiuhiuts," 
and were ignorant of it, and the Commission has prevented their 
being enrolled, would that have any bearing on the matter, in your 
judgment ( 

Mr. Cornish. It might have a bearing upon Congress in providing 
that exact justice be done, if, as a result of that, injustice had been 
done. 

The Chairman. The committee will now take a recess until 1 ..30 
o'clock. 

AFTER recess. 

Mr. Cornish. Mr. Chairman and gentlemen of the committee, we 
were considering a procedure adopted by the Commission under the 
law of 1898, to do the field work necessary to make up the tribal rolls. 
The statement was made on yesterday, evidently for the pur])ose of 
prejudicing the Commission in the minds of this committee, that the 
Commission has not done its duty in the matter of these applications 
and making up these records. 

Now, as bearing on that ])roposition, the statement is made by 
IVIr. Ballinger that the law itself required that the evidence of these 
people be taken down in a certain w.iy, and that that was not done. 
That statement was evidently made for the purpose of putting the 
Commission in a bad light before this committee, as, according to 
his contention, that would jbe one of the reasons why relief should be 
given in this particular class of cases. Now, when the law is exam- 
ined it appears that that statement is not correct. That is one of 
his flagrantly incorrect statements. 

Mr. Baleixcer. Mr. Chairman 

Mr. Cornish. I shall do you perfect justice, Mr. Ballinger. 

The Chairman. Mr. Ballinger, unless you desire to call the speak- 
er's attention to something that you think he is seriously mistaken 
about, I suggest that he be allowed to proceed without interruption. 

Senator Clark, of Wyoming. My impression was that Mr. Ballinger 
rose to question ^Ir. Cornish's statement of his position. 

Mr. Ballinger. I will state the purpose for which I arose. I was 
asked by Senator Brandegee whether the instructions were con- 
tained in the statute, or were contained in the departmental instruc- 
tions, and I stated specifically that the}^ were contained in depar't- 
mental instructions. 

Mr. Cornish. The direct statement was made that the require- 
ment was contained in the face of the law; that this evidence was 
to be taken, and the procedure taken in a certain way. 

Now, I call the committee's attention to that part of the law, which 
does not contain any such statement. It s'djs that the Commission 
shall be authorized and directed to make correct rolls of the citizens 
by blood of all the other tribes, etc. 

And in another part of this same law — this is the only provision 
defining how the Commission shall proceed — and it says: 

Said Commission shall make such rolls descriptive of the persons thereon, so that 
they may be thereby identified, and it is authorized to take a census of each of said 



CROCTAW AND CHTCKASAW IXDIANS. 43 

tribes, or to adopt any other means by thoni deonied necessary to enable them to make 
such rolls. 

Now, tmder this provision of that law, it appears that the statement 
that the proceedino;s of the Commission should be conducted in any 
particular way is incorrect. Then Mr. Ballinger made the statement 
as to how their proceedings should be conducted, that it was con- 
tained hi departmental instructions. Now, I would like to see 
those instructions. 

Senator Braxdegee. While Mr. Ballinger is looking for that paper 
1 woidd like to ask you a (|uestion. 

Mr. CoRXisii. I will be very glad to furnish any information that 
may be desired. 

Senator Brande(;ee. I wanted to ask you this: If it should be 
determined that the word ''descendants," as used in the treaty of 
IS.'iO, meant physical issue, to use your language, then could Con- 
gress constitutionally pass an act which would depi'ive those people 
of their right to enrollment ( 

Mr. CoKXisii. Well, yes: 1 think the exercise of that power would 
be sustained 

Senator Braxdecjee. 1 did not want to suggest that you be heard 
on that point, but it occiu'red to me that it was a material point. 

Mr. CoRXisii. I think the exercise of such power would be sus- 
tained. 

Senator linAXDEciEi;. My j^oint is. if the treaty fixes the list of 
persons, can Congress alter it ( 

Mr. Cornish. That is the question you raised this morning. We 
have always contended that the treaty should govern: that a mere 
act of Congress would not set aside a treaty provision, but there are 
many who take the opj)osite view of that matter. 

Senator Ci, ARK, of Uyoming. But your individual view is that if 
Mr. Ballinger"s definition of the word "descendants" is a correct 
view 

Mr. Cornish. I do not <|uite see how we would get at that, because 
I can not assume that it means what he says it means. 

Senator Clark, of Wyoming. You can not assume, but you can 
asstuue for the purpose of answering my question, or giving me 
such light as you have, assuming — we will not say Mr. Ballinger's 
view — l)ut assuming that the view of Assistant Attornej^-General 
Campbell is correct in tliat respect, how then would it be necessary 

Mr. CoRXisn. I think I get vour idea. If it were written in the face 
of the treaty of 1S30 

Senator Clark, of Wyoming. You still do not get my idea. 

Mr. CoRXLsn. I think I do. 

Senator (^lark, of Wyoming. 1 know you do not get the view that 
is in my mind. 

The Chair.man. I suggest that you let Senator Clark have the privi- 
lege of stating his question. 

Mr. CoRXLsn. Excuse me. 

Senator Clark, of Wyoming. My understanding is that Attorney- 
General Campbell interprets the word ''descendants" as it is used in 
the treaty- he interprets that to mean any person who has in his 
veins Indian blood, notwitlistandhig the fact that he may also liave 



44 CHOCTAW AND CHICKASAW INDIANS. 

other blood. That, I understand, to be Attorney-General Campbell's 
interpretation of the word ' 'descendants." 

Mr. Cornish. In effect. 

Senator Clark, of Wyomino;. Now, accepting, for the sake of the 
hypothetical question, that his interpretation is correct, then how 
would you answer Senjitor Brandegee's question? 

Mr. Cornish. If his interpretation is correct, and that is what the 
treaty means, then his people would be entitled. That is true. 

Senator Warner. And Congress ought not to deprive them of it. 

Mr. Cornish. I may say that some very distinguished people differ 
on that proposition. 

Senator Clark, of Wyoming. And your opinicjn would be that 
Congress could not? 

Mr. Cornish. I do not know that I could intelligently define my 
view on that question. I have not considered it sufhciently. 

Senator Clark, of W^^oming. Suppose, instead of the word ' 'de- 
scendants" it was "full-blood Choctaw Indians" in the treaty; could 
Congress pass a law cutting off the rights of the full-blood Choctaw 
Indians ? 

Mr. Cornish. Of course you desire my view. There are many 
views on that subject. 

Senator Clark, of Wyoming. I want your view — not as binding on 
this case, or as especially influencing this particular case. 

Mr. Cornish. Well, in the light of the decision of the Circuit Court 
of Appeals, in a case which has recently been presented to it, and in 
the light of an opinion which, I think, the Supreme Court will render 
in a very short time on that question, I believe Congress has that 
power. 

Senator Clark, of Wyoming. You believe that Congress has the 
power ? 

Mr. Cornish. Yes, sir; in other words, I believe that the courts of 
this land would sustain that power if Congress saw fit to exercise it. 

Senator Clark, of Wyoming. Your view is that the present deci- 
sions and those that are looked for by the Supreme Court 

Mr. Cornish. Yes, sir; would sustain that power, if exercised. 

Senator Clark, of Wyoming. You believe, then, under the present 
decisions of the court, and the decisions that are to be looked for, that 
the Supreme Court woidd say that Congress had the exclusive right to 
make those rolls upon its own motion, without reference to any tribal 
rights that may have theretofore been bestowed? 

Mr. Cornish. Yes, sir; I think the courts would sustain that power 
if Congress saw fit to exercise it. I have not considered it sufficientlv 
to mature my own view definitely. Academically speaking, I do noi 
know whether I believe that is the law or not, but I do believe the 
courts of the land ^^'ould sustain the power if Congress saw fit to exer- 
cise it. 

Senator Warner. That is, if the treaty provided that only full- 
blood Choctaws should be enrolled, that Congress would have the 
power to say that only half breeds should be enrolled ? 

Mr. Cornish. Yes, sir; I believe that. 

Senator Clark, of Wyoming. In other words, Congress has plenary 
power in the matter, you think I 



CHOCTAW AND CHICKASAW INDIANS. 45 

Mr. CoENiSH. I am reflecting' what the decisions of the courts 
would be, in my judgment. 

Senator Bkakdegee. In the opinion of Mr. Van Devanter, which 
you handed in this morning — without reading that particular deci- 
sion — does he discuss the meaning of the word "descendants" in 
the treaty of 1830? 

Mr. CoKNisH. No, sir; I do not think he does. 

Senator Brandegee. That was in the decision that was spoken of 
yesterday by Mi". Ballinger ? 

Mr. Cornish. I understood that he referred to some decision of a 
court in Alabama. 

Senator Brandegee. That decision which Senator Clark alluded 
to a few moments ago by Mr. Campbell, what case is referred to in that ? 

Senator Clark, of Wyoming. It was the Perry case, where it was 
decided that if the person had Indian blood he was of necessity the 
the descendant of an Indian and entitled to enrollment. 

Senator Brandegee. How does that opinion of Mr. Van Devanter, 
which you handed me this morning — if it does not discuss the meaning 
of the word ''descendant" as used in the treaty of 1830 — have any 
bearing on the present c|uestion? 

^Ir. Cornish. In tliis way, that the treaty of 1898, which the deci- 
sion of ]\Ir. Van Devanter discusses, and the subsequent laws passed 
in pursuance of that treat}", provides tliat the commission to the 
Five Civilized Tribes, and various other tribunals of the Government 
of the United States, shall, in the making up of the rolls of citizensliip, 
be limited to persons whose names appear on the tribal roll, which 
tribal rolls were made in pursuance of the laws, customs, and usages 
of the tribes. 

Senator Brandegee. But does it not also say that it shall be made 
with reference to the treaty rights? 

]Mr. Cornish. It says so in terms, and the subsequent law reflects 
the holding of ]\Ir. Van Devanter. It is simply the legislative con- 
firmation of a judicial opinion. It sa^^s that no person shall be 
enrolled unless the najne of that person appears on some roll of the 
tribe. 

Senator Brandegee. May I make this suggestion to you — and I 
do not want to tell you how you shall try your case, but having 
been tlirough these papers which have been filed by Mr. Ballinger, 
representing his side of the case- — I notice that wherever he has 
referred to a statute bearing on this matter he has inserted the full 
statute, and I think we could get a more coherent idea of your claim 
when we read your, statement if you would also insert the full statute 
instead of an excerpt. 

Mr. Cornish. I think the inference that I have omitted anything 
that bears on this controversy is somewhat unfair. 

Senator Brandegee. I do not mean that any such inference shall be 
drawn, but I do mean that when I am called upon to construe a 
statute I would like to see the whole of it. 

Mr. Cornish. I have given such references to statutes so that they 
can readily be found, and in many instances I have quoted them. 

Senator Clark, of Wyoming. I think you had better do as Senator 
Brandegee suggests, because there is a good deal of this matter that 
we will have to go over. 



4(> CHOCTAW AND CHICKASAW INDIANS. 

Senator Stone. Before you proceed, Mr. Cornish, I would like to 
ask you, as a question of fact — which I suppose you can answer — 
when the treaty of 1830 was made, these Indians were all living there? 

jVIt. Cornish. Yes, sir. 

Senator Stone. Were they slave owners and holders at that time? 

Mr. Cornish. Yes, sir. 

Senator Stone. Did they take their slaves with them to the Terri- 
tory ? 

Mr. Cornish. Yes, sir; they did, just as they did their cattle and 
other property. 

Senator Stone. When they moved there? 

Mr. Cornish. Yes, sir. 

Senator Stone. I asked those questions in order to ascertain the 
condition at the time the treaty was made. 

Mr. Cornish. There is no question that at the time they immi- 
grated they took their slaves as well as their other property. 

Senator Warner. What do I understand your conclusions to be 
as to Mr. Van Devanter's decision? 

Mr. Cornish. My conclusion is that it is therein held that the 
Government of the United States in making up the tribal rolls — the 
rolls of those persons to participate in the distribution of the tribal 
property, shall be only those persons who have been enrolled by the 
tribes themselves in pursuance of their laws, customs, and usages. 
I understand that to be his holding, and that holding is reflected in 
the law of the next year. 

Senator Warner. And their descendants? 

Mr. Cornish. And their descendants born since the tribal rolls 
were made, and the tribal rolls to which I have reference were made 
in 1893 and 1896. 

Now I call on Mr. Ballinger for the instructions to which he re- 
ferred a few moments ago. You understand that the statement yes- 
terday — and the statement wliich I contradicted — was that those 
instructions which he alleges the Commission to have violated were 
contained in the law. That is not a correct statement, as we have 
seen from the law itself. His next statement was that the Depart- 
ment of the Interior had prescribed certain regulations for the 
government of the Commission in its work, providing that those pro- 
ceedings should be conducted in a certain way, and that those instruc- 
tions were not followed. I know what the facts were, and that is 
why I call for this instruction. The instructions to which Mr. Bal- 
linger has referred were issued on July 30, 1899, while these tran- 
sactions occurred in the fall of 1898. That confirms what I stated 
this morning, that when the Commission proceeded in the fall of 
1898 there were no departmental instructions; the Commission 
looked only to the language in the face of the law itself anda dopted 
that procedure and did those things which in its judgment ought to 
have been done. 

Senator Clark, of Wyoming. What is the date of those instructions ? 

Mr. Cornish. July 25, 1899. 

Senator Clark, of Wyoming. Then those instructions were issued 
after the fost tour of the Commission through the Chickasaw Nation ? 

Mr. Cornish. Yes, sir. 

Senator Clark, of Wyoming. But before their second tour through 
the Choctaw Nation? 



CHOCTAW AND CHICKASAW INDIANS. 47 

Mr. Cornish. I think it was while they were in tlie midst of their 
tour through the Choctaw Nation. I remember all those circum- 
stances very well, because I was with the Commission in 1899 as 
an attorney for the Chickasaws. When the Commission proceeded in 
1898, and when all of these transactions occurred, it was simply 
construing the law for itself; there were no instructions from the 
Department. 

Senator Clark, of Wyoming. Let me ask you a question right 
there; I want to get all tlies? facts properly in my mind. Are 
all these people who claim under Mr. Ballinger all those who are 
confined to the Chickasaw people, or are the}^ seeking to come in on 
the Choctaw rolls, which were not made until 1899? 

Mr. Cornish. Some, I vmderstand, are claiming as Choctaws, 
but most of them as Chickasaws. 

Senator Clark, of Wyoming. When you say all were iinckn* the 
action of the committee in 1898, you do not mean to be understood 
as saying that he has none to come in vmder the Choctaws ( 

Mr. Cornish. No, sir; 1 am adch-essing myself to the incorrect 
statement that was made yesterday' for the purpose of putting the 
Commission in a bad light. T say that the Commission was pro- 
ceeding upon its own construction of the law in its tour through 
the Choctaw Nation in 1898. 

Senator Clark, of Wyoming. 1 did not understand ^Ir. Ballinger 
to say anj^thing about the tour through the Chickasaw Nation, or 
about its rolls, whether they were made in the Chickasaw or Choctaw 
Nation, or wherever tliose people applied. 

Ml'. CoKXisn. From the beginning of the Conunission's tour 
through the Chickasaw Nation various people came in from other 
States and claimed that they had a right to appl}' as Indians, not- 
withstanding the fact that they had no tribal recognition, either by 
tribal enrollment or by being admitted by the Commission in 1896. 
But a controversy arose in tlie winter of 1898, and after they started 
out through the Choctaw Nation in 1899, then the question was 
submitted to the Department and these instructions, which I hold 
in my hand, were given, and from that time the Commission followed 
those instructions and j)ermitted everybody, whether he be on a 
tribal roll or not, to be heard. They took down what he saitl, and 
submitted tiiat case for the approval or disapproval of the Depart- 
ment as to whether they should or should not receive the application 
of the party. 

Senator Clark, of Wyoming. Let me interrupt you there — this mat- 
ter covers so much ground, and I want to get distinctly in my mind 
the main points. T understand 3"ou to assert now, as a fact, that after 
these instructions were promulgated every person who applied to 
have his name entered on the rolls had his examination taken down 
in writing and preserved; is that your recollection? 

Mr. Cornish. That is my best information — not upon the merit of 
the claim but upon the proposition as to whether he was such a person 
as came within the jurisdiction of the Commission. They heard him 
and took down his statement on the preliminary questions as to 
whether the Commission had or had not jurisdiction. Then it was 
that Mr. Van Devanter's opinion was rendered, which held that the 
Commission had no power to entertain an application on the merits. 
The statement was taken down and reviewed by the Department on 



48 CHOCTAW AND CHICKASAW INDIANS. 

the preliminary question as to whether the Commission had jurisdic- 
tion. After hearing those facts, and it developed that he had not been 
on a tribal roll or had not been admitted under the law of 1896, the 
Commission held that it had no jurisdiction, and that construction of 
the law was held by Mr. Van Devanter. 

Senator Clark, of Wyoming. But in all the cases this preliminary 
examination was held as a permanent record? 

Mr. Cornish. Yes, sir. 

Senator Brandegee. But the examination did not go into tlie fact 
of whether he had any Indian blood in him or not ? 

Mr. Cornish. Not upon the preliminary question, no; that was 
one of jurisdiction, as to whether he was such a person as came within 
the jurisdiction of the Commission, the requirement being that he 
must be in one of two classes — either upon a tribal roll or admitted by 
the Commission in pursuance of the jurisdiction of 1896. That meets 
the contention that the Commission was violating the law or ignoring 
its instructions in the fall of 1898. 

Now, the way the Commission did proceed in 1898 was to receive, 
the applications of persons who applied; if he came within the juris- 
diction of tlie Commission, if he applied as an Indian, and a prelimi- 
nary examination of the roll was made and it appeared that his name 
was on one of the tribal rolls, or that he had been admitted in 1896, the 
Commission had jurisdiction, and his application was placed on what 
was called a field or census card. Those cards are complete and 
thorough; they contain the name of the person, post-office address, 
age, name of father, name of mother, degree of blood, and the refer- 
ence to the tribal roll upon which his name appears. 

That is the record which the Commission did make in pursuance 
of that requirement of Liw, which says that the Commission shall 
make such rolls descriptive of the persons thereon. That is what 
it did under its construction of the law of 1898. 

Now objection is made upon the ground (evidently for the pur- 
pose of putting the Commission in a bad light) that it did not take 
mil and complete stenographic notes of the proceedings. The 
evidence of the applicants which was given to the Commission, or 
to the clerks of the Commission, which evidence or which testimony 
or which information went upon the face of these cards, was given 
under oath. Each applicjint was put under oath, and the appli- 
cation of the applicant is not found in the brief stenographic notes 
to which reference has heretofore been made, but upon the field 
or census card which the Commission has made and kept, which 
was submitted to you yesterday. As I have said, it contuined the 
name of the applicant, his age, post-office address, degree of Indian 
blood, if he be an Indian; and practically the same card was made 
use of in the enrollment of freedmen, except that that card con- 
tained the additional information as to the parents of the applicant 
and the particular Indian who w; s the owner of the ancestor tlu'ough 
whom freedmen applicant claimed. 

So much for that, as to the proceedings of the Commission under 
the law of 1898. I do not believe after an examination of these 
facts presented by the subcommittee in the Indian Territory, and 
here presented, that the conclusion can be fairly reached that the 
Commission did not exercise its very best judgment in an entirely 
proper way in the administration of the law of 1898 in the making 



CHOCTAW AND CHICKASAW INDIANS. 49 

up of those rolls. The mstructions which I have reference to were 
brought about by the insistent bombardment of the Commission 
b}^ thousands — and since that time, scores of thousands — of persons 
who came in from the surrounding States. Those instructions 
were brought about by those persons who came in from the sur- 
rounding States, who claimed to be Indians, but who did not come 
within the jurisdiction of the Commission, because they were not on 
the tribal rolls, and had not been admitted by the Commission in 1896. 
Now, the statement has been made that the law itself did not 
require the applicant to make an application; that the duty rested 
upon" the Commission to see to it that the application of every person 
who, upon any theory of the law had a right to apply, should be 
brought in and the application- made. That view of the law can not 
be sustained. The law of 1898 does not say in so many words that 
the applicant shall make a personal application. The law of 1898 
does not say that. I have referred to that several times, and shall 
only do so now for the purpose of bringing out this particular point: 

Said Commission shall make such rolls descriptive of the persons thereon, so that 
they may be thereby identified, and it is authorized to make a census of each of said 
tribes, etc. 

Under that they sent out notices to all who wished citizenship, 
and voluntary applications were made by everj^ person claiming to 
be a citizen, and by everybody claiming to be a freedman, so there is 
no particular profit now in our showing what the duty of the Com- 
mission was. The Commission construed that law and issued 
notices requiring persons to meet them at its apartments, unless 
they were ill or infirm, and then some means were found by a mem- 
ber of the Commission going to the residence of any person wlw was 
physically disabled, and unable to come before the Commission. 
But they construed that law^ to mean that those people shoidd come 
before it and make application, and that was done, not only by the 
Indians but by all the parties represented b}'" opposing counsel at 
the time. 

Senator Brandegee. If that is so, if a man appeared there, 
whether you call him an a]:)plicant or claimant, or a man who 
wanted to get em-olled, and did not know which roll he ought to go 
on, but appeared there, is it not a fact that under these instructions 
contained in that act the Commission ought to have inquired about 
the amount of Indian blood he had in him for the purpose of deter- 
mining which roll to put him on ? 

Mr. Cornish. Perhaps we may at this time say that the Commis- 
sion might have done some tiling which they did not do. If a man 
presented liimself — if he was as black as the ace of spades, and said 
to the Commission "I am an Indian and have a right to be enrolled 
as an Indian," it was certainly the duty of the Commission to look 
into that matter to determine whether it had jurisdiction over him. 

Senator Brandegee. I understood you to say as a matter of fact 
that the Commission did not make any inquiries as to the quantity 
of Indian blood in the applicant, and I understand that the testi- 
mony there is that in a great many cases represented by Mr. Bal- 
linger the quantum of Negro blood is much larger than the quantum 
of Indian blood, and in such cases if the applicant resembled an 
Indian more than a Negro, would they not ask him something about 

S. Doc. 257, 59-2 4 



50 CHOCTAW AND CHICKASAW INDIANS. 

the amount of Negro blood instead of directing him to the freedmen 
tent? 

Mr. Cornish. As I understand it, the first proper inquiry of the 
Commission would be to determine whether they had jurisdiction 
over that person. The question of blood would not arise on the 
preliminary examination. The fu'st inquiry would be ''Ai'e you 
within our jurisdiction as an Indian? Are you in the tribal roll, or 
were you admitted by the Commission in 1896?" The rolls were 
before them; if a man said "I am an Indian," the first duty of the 
Commission would be to examine the roll to see if his name was on 
that roll, or to examine its records of 1896 to see if he had been 
admitted to those rolls in 1896. I am assuming now that he was 
not in either of those classes; then it developed that he was not 
within the jurisdiction of that Commission, and that would have 
ended the inquiry, upon the construction of the law placed upon it 
by ]VIr. Van Devanter, and the law enacted the next year. 

Senator Clark, of Wyoming. Now, as a matter of fact, the Indian 
rolls show a considerable number of people who had in their veins 
Indian blood. 

]\Ir. Cornish. Yes, sir; the statement has been made that there is 
a desire on the part of the Indians, and those representing the Indians, 
to discriminate against those Indians because of their Indian blood. 
There could not be a more unfair statement than that. There are 
many persons in the Choctaw^ and Chickasaw nations w^ho are citizens 
and who are possessed of some negro blood. That does not of itself 
bar them. 

Senator Long. Under what circumstances are they put on there? 

Mr. Cornish. The}^ are put on by the Commission. 

Senator Long. When are they put on and when rejected? 

]Mr. Cornish. The test is whether they are on the tribal roll, 
whether or not they have been recognized as Indians and their names 
appear on the tribal rolls. Now, if a negro man is or should be mar- 
ried to an Indian woman, their children, notwithstanding the fact 
that they are children possessed of negro blood, would be entitled to 
enrollment as Indians if they had been placed on the rolls by the 
Indians. 

Senator Long. And the tribes put such on the roll ? 
P Mr. Cornish. Yes, sir; in many cases. 

Senator Long. But suppose he had married a woman who had 
been a slave in the tribe contrary to the tribal law? 

Mr. Cornish. The tribal custom, which is universal, and which has 
always been followed, would have intervened there and that child 
would have followed the status of the mother. The mother is pos- 
sessed and in the enjoyment of rights of Chickasaw citizenship in the 
tribe, that of freedmen, and the child would have undoubtedly been 
enrolled as a freedman. ■ 

The statement that there is a desne on the part of the Choctaw 
and Chickasaws to discriminate against these persons because of their 
negro blood is absolutely untrue, because there are persons in the 
Choctaw and Chickasaw nations who are on the tribal roll and who 
are possessed of some negro blood. I do not think that marriage 
and legitimacy of issue was presented when you were in the Indian 
Territory; but the Choctaw and Chickasaw nations have preserved 
their blood pure and uncontaminated, in so far as the colored race is 
concerned. 



CHOCTAW AND CHICKASAW INDIANS. 51 

Their blood has l)een preserved with as much purity as in any other 
southern community. The negroes were their slaves, and they 
regarded them just as the slaves were in the South, except they have 
received vastly more benefits than in any other southern community, 
because of the property that was conferred on them. There has not 
only not been anj' discrimination so far as the Choctaws and the 
Chickasaws are concerned against their slaves, but the}^ have done 
more for their slaves than is the case in any other southern com- 
munity. 

Senator McCumber. The}^ did it more because of a pressure on 
the part of the (lovernment as a punishment for taking sides with 
the Confederac}'? 

Mr. Cornish. Possibly; I do not know anything about the object 
of the treaty of 1860, but I say frankly if the Indians had been left 
to the entire control of the matter, I doubt very much if tlie}^ would 
have given their slaves property valued at many millions of dollars. 
But the Government of the United States insisted that they do that. 
They agreed to it and have carried it out, and their freedmen, or their 
slaves, have been vastly more benefited under the peculiar condi- 
tions existing in that comnumity than in any other southern com- 
munity. 

Senator La Follette. On the .subject of that law of 1898, and I 
ask for information, was the Commission clothed with ))ower to issue 
process to bring in those people ? 

Mr. Cornish. Yes, sir. 

Senator La Follette. Could the}^ summon them? I mean with 
reference to examination to ascertain their proper status, and whether 
they were entitled to enrollment? 

Mr. Cornish. There was such a provision either under this law or 
a later law. 

Senator La Follette. .You do not think that was under the law 
of ]S\)S( 

Mr. Cornish. 1 do not think there was anything in the law of 1898 
to that effect; possibly so. 

Senator La Follette. If there was a provision there clothing 
them with that power, it would appear, would it not, as though it 
had l)een contemplated that they ought to search them out? 

Ml-. Cornish. Not when we consider the later law. I was coming 
to the law that was passed in the next year. 

Senator Braxdegee. They were directed to make a census of 
them. 

Mr. Cornish. Y>s, sir. 

Senator La Follette. It was either in this hearing or some hear- 
ing that was held last session, in which I understood that they had 
the right to issue summons and subpoenas, and to attach their per- 
sons in order to bring them for such exannnation, and carry out the 
requirements of the law in completing the enrollment, whether they 
wanted to be enrolled or not. 

]\lr. Cornish. I am sure there was a provision in one of the later 
laws; when the whole work was about to be closed there was a pro- 
vision requiring them to bring in such as had not presented them- 
selves. If there was any doubt about the construction of the act of 
1898, as to which of those persons were required to make applications, 
and that the Commission was not of its own motion required to beat 



52 CHOCTAW AND CHICKASAW INDIANS. 

the brush and figure out for them what their rights were — if there is 
any doubt on that proposition I think it is only necessary to refer 
to the law of 1900, which makes reference in terms to applications 
which shall be made by the applicants themselves. The act of May 
31, 1900, says: 

The said Commission shall continue to exercise all the authority heretofore conferred 
upon it by law. But it shall not receive, consider, or make any record of the applica- 
tion of any person, etc. 

That is the language used in the law of 1900 with regard to applica- 
tions. 

The law of 1902, section 27 

Senator Warner. Is this the supplemental agreement? 

Mr. Cornish. This is section 27 of the act of 1902, known as the 
' ' Supplementary agreement : " 

The rolls of the Choctaw and the Chickasaw citizen and Choctaw and Chickasaw 
freedmen shall be made by the Commission to the Five Civilized Tribes in strict 
compliance with the act of Congress approved June 28, 1898 (30 Stat. L., 495), and the 
act of Congress approved May 31, 1900 (31 Stat. L., 221), except as herein otherwise 
provided. 

Now, joii \\dll understand that up to the time the treaty of 1902 
was adopted the Commission had not made the rolls. The Com- 
mission had only gone out into the field at various times and upon 
various occasions and in various ways, and gotten together these 
applications and the testimony, the crude material from which the 
rolls could be made. The roll was not made and completed under 
the law of 1898 or the law of 1900, but the provision for the comple- 
tion of the rolls and the definition of the final authority of the Com- 
mission for the completion of that roll, and the prescribing of the 
manner in which it should be made, is contained in the treaty of 
1902, under which the citizenship business was intended to be closed, 
and that said that the Commission should make the roll in accord- 
ance with the laws of 1898 and 1900. In section 34 of the same act, 
July 1, 1902, it is also provided: 

During the ninety days first following the date of the final ratification of this agree- 
ment the Commission to the Five Civilized Tribes may receive applications for enroll- 
ment only of persons whose names are on the tribal rolls, but who have not heretofore 
been enrolled by said Commission, commonly known as "delinquents," and such 
intermarried white persons as may have married recognized citizens of the Choctaw 
and Chickasaw nations in accordance with the tribal laws, customs, and usages on or 
before the date of the passage of this act by Congress, and such infant children as may 
have been born to recognized and enrolled citizens on or before the ratification of this 
agreement; but the application of no person whomsoever fpr enrollment shall be 
received after the exphation of said ninety days. 

That is the provision of the law which fixes the 25th of December, 
1902, as the filial date on which applications may be received. 

Senator La Follette. If I may interrupt you, this memorandum 
has been handed to me and is marked as a part of the act of June 28, 
1898. I will just read the paragraph to bring the matter to your 
attention in this connection : 

Said Commission shall make such rolls descriptive of the persons thereon so that 
they may be thereby identified, and it is authorized to make a census of each of such 
tribes, or to adopt any other means by them deemed necessary to enable them to make 
such rolls. They shall have access to all rolls and records of the several tribes, and 
the United States Court in the Indian Territory shall have jurisdiction to compel the 
officers of the tribal governments and the custodians of such rolls and records to deliver 
them to said Commission, and on their refusal or failure to do so to punish them as for 



CHOCTAW AND CHICKASAW INDIANS. 53 

contempt; as also to require all citizens of said tribes, and persons who should be 
enrolled, to appear before said Commission for em-ollment at such times and places as 
may be fixed by said Commission, and to enforce obedience of all others concerned, so 
far as the same may be necessary, to enable said Commission to make rolls as herein 
required and to punish anyone who may in any manner or by any means obstruct said 
work. 

This bears upon the question that I asked you before, as to whether 
there was not some obho;ation on the part of the Commission; that 
was not the question; the question was as to whether they did not 
have authority, and whether that did not imply an obhgation that 
they should compel attendance and enforce obedience of all others 
concerned in the making of those rolls. 

Mr. CoRXiSH. Yes, sir; undoubtedly. If any person had not made 
application the Commission would, under that provision of the law, 
have had power to enforce their attendance by process of the United 
States courts. 

Senator La Follette. Would it not appear to be the spirit if not 
the letter of that statute that thej should exert themselves to make 
a complete roll of all persons concerned? 

Mr. Cornish. That the}" were undoubtedly required to do in the 
final completion of the work. There were persons known as ''delin- 
quents;" that is, after the Commission had operated in the country 
for five or six years there were Indians who did not look with favor 
upon the action of the Government of the United States, and there 
were many who even up to the time the work was closed refused to 
present themselves, and their attendance was compelled under either 
that ])rovision or some later provision of law. The Commission 
had undoubtedly the power to see to it that the persons who were 
entitled slioidd be brought in. 

Now, these proceedings having been taken as stated and these 
particular applicants having voluntarily presented themselves a dis- 
cussion of what the power of the Commission was with reference 
to any delinquents or persons who did not present themselves with 
an application would have very little application, or practically no 
application, so far as those persons are concerned, because they pre- 
sented themselves; every man, woman, and child presented himself 
voluntarily listed for em'ollment as freedmen, and was subsequently 
enrolled by the Commission as freedmen, and for five long years — 
from 1898 until 1903 — nothing was done, and nothing was said with 
reference to the existence in anybody's mind as to doubt of what 
their rights were. During that time their enrollment was com- 
pleted b}' the Commission to the Five Civilized Tribes and the Secre- 
tar}' of the Interior. They were placed on a roll of freedmen and 
that was approved. They presented themselves to the land office 
and voluntarily asked that the allotments to which they were 
entitled, to wit, 40 acres, be set apart for them; they were set apart 
for them, and after the work of the Government was practically 
completed under existing law then it was suggested by some one 
that those people had rights, and the case w^as referred to Mr. Camp- 
bell, and the extraordinary decision, to w^hicli I have referred, was 
riiade. After that decision was made these applications, aggrgating 
some 1,500 persons, were filed with the Commission to the Five 
Civilized Tribes and are there now. 

This decision of Mr. Campbell was in what is known as the Joe and 
Dillard Perry case. In that case there was some contention that 



54 CHOCTAW AND CHICKASAW INDIANS. 

those children were legitimate children. That was the evidence on 
which Mr. Campbell passed. The alleged father of the children was 
a Chickasaw Indian and the woman was a negro woman and a fi*eed- 
man, with her status fixed as such and in the enjoyment of her 
status. She had applied for the enrollment of herself as a freedman 
and for the enrollment of those children as freedmen, and their rights 
had been fixed and had stood for more than five years before this 
idea was suggested. Then it was that upon those facts the decision 
of Mr. Campbell was rendered. There was some contention in this 
case that there had been a legal marriage between Perry and this 
woman. The children had been begotten, and this relation existed, 
and the authorities of the United States were to proceed against 
them. They were to be taken to Paris, Tex., for trial, and it was 
stated by the woman that about that time some sort of marriage 
ceremony had taken place. It was on that state of facts that the 
decision in the Joe and Dillard Perry case was rendered. 

Senator JVIcCumber. That decision which was rendered admitted 
them to citizenship? 

Mr. Cornish. Yes, sir. 

Senator McCumber. Although they were the children of a slave 
mother? 

Mr. Cornish. Yes, sir. 

Senator McCumber. That is contrary, of course, to your contention. 

Mr. Cornish. It is contrary to the laws, customs, and usages of the 
tribes. 

Senator McCumber. On what did he base that decision? 

Mr. Cornish. It is just as broad as language can make it. He held 
in effect that the physical progeny — I use that because in this instance 
I think it is more descriptive than any term I can use — that the 
physical progeny of an Indian man, without reference to circum- 
stances, and without reference to legitimacy or illegitimacy — if the 
physical fact be established that the child was begotten by the Indian 
man — that that entitled the child to enrollment as an Indian. 

Senator Clark, of Wyoming. That would be a descendant ? 

Mr. Cornish. Yes, sir; according to Campbell. 

Senator Long. Under the treaty of 1830? 

Mr. Cornish. Yes, sir. Now, the committee will understand that 
our complete answer to this is that the word ' 'descendants" or the 
construction given of the treaty of 1830, is entirely met and negatived 
by the use of the words ' ' heirs and successors ' ' in the treaty of 1855 
and by the subsequent treaties of 1898 and 1902, wliich provide that 
the Commission to the Five Civilized Tribes and the Secretary of the 
Interior shall have no power to enroll any person unless that name 
appears on some one of the tribal rolls which were made in accordance 
with the laws, usages, and customs of the tribes. 

Congress never intended to deprive the tribes in the making of rolls 
and of the protection of their own laws, customs, and usages. 

Senator Warner. I understood you to say a few moments ago 
that Congress would have had the power to authorize a roll to be 
made up of that class of Choctaws and Chickasaws if they saw fit, 
whether full blood or half-breed. 

Mr. Cornish. I stated my belief that the courts would sustain that 
power if Congress saw fit to exercise it. Congress has never exercised 
that power, and I do not believe it will do so. ' " . 



CHOCTAW AND CHICKASAW INDIANS. 55 

Senator McCumber. Was not that case which was before the 
Supreme Court a similar case to determine that same question ? 

Mr. Cornish, No, sir. This decision of Mr. Campbell's is one of 
many decisions which have been rendered by Mr. Campbell in recent 
years. The select committee is of course in full possession of my 
views with reference to the weight that should be given to Mr. Camp- 
bell's decision. 

Senator Brandegee. That decision has been affirmed by the 
Attorney-General, has it not? 

Mr. Cornish. No, sir. 

Senator Long. Has it been submitted to the Attorney-General? 

Mr. Cornish. No, sir; we have tried to have it submitted to the 
Attorney-General but that permission was specifically denied by the 
Secretary of the Interior. 

Senator Clark, of Wyoming. Was that one of the cases that you 
asked to be submitted recently? 

Mr. Cornish. No, sir. 

Senator Clark, of Wyoming. You have never tested or sought to 
test tliis decision before the Attorney-General? 

Mr. Cornish. No, sir; because if this committee and Congress 
should agree with us on this presentation of the matter that the law 
as it stands should not be changed, it is not a matter of any conse- 
quence because there is no power to pass on these applications. 

Senator Clark, of W^^oming. And on your theory, if Congress 
admits these people to citizenship their influence would have no 
legal weight with the Attorney-General? 

Mr. Cornish. No; if Congress should exercise the power to pro- 
vide an enrollment of these people, of course none of the opinions of 
the executive officers would be of benefit to us. 

Senator McCumber. I want to call your attention to a statement 
in a very late letter from the Connnissioner in which he says: 

The Supreme Court of the United States in the case of the Chickasaw Freedmen v. 
The Choctaw Nation and Chickasaw Nation (193 U. S., 115), held that the Chickasaw 
fi'eednien were not citizens of tliat nation, and that whatever right they have to share 
in the distribution of tlie Clioctaw and Chickasaw nations is by virtue of the operation 
of the act of July 1, 1902, and not independently thereof. 

Mr. Cornish. Yes, sir. Are you familiar with that decision? 

Senator McCumber. I am not; I have not read it. 

Mr. Cornish. That is a case which was taken to the Supreme 
Court of the United States to determine the question as to whether 
or not the Chickasaw freedmen were entitled to the 40 acres of land 
under the treaty of 1866. You understand that in the treaty of 1898 
it was agreed that Chickasaw freedmen should be enrolled, but the 
question of law as to whether they were entitled to that 40 acres of 
land should be determined later. It was submitted to the Court of 
Claims under the treaty of 1902, and the decision to wliich you have 
reference is the affirmance by the Supreme Court of the United 
States of that decision. 

Senator McCumber. But whether it is in direct issue or not, this 
case seems to have held that the Chickasaw freedmen were not citi- 
zens of that nation. 

Mr. Cornish. I do not see that that has any application because 
that decision bore entirely on the question of the rights of these peo- 
ple as freedmen. The question was whether they had been adopted 



5G CHOCTAW AND CHICKASAW INDIANS. 

under the treaty of 1866 as freedineii. We contended that because of 
the fact that the frecdmen had not been adopted the Cliickasaws were 
entitled to pay for those lands. 

Senator Long. And the Supreme Court sustains that? 

Mr. Cornish. Yes, sir; and the Government of the United States 
will be called upon to pay 

Senator McCumber. Then I understand jou to say that those 
words could not be held as res judicata of that subject? 

Mr. Cornish. No, sir; because the citizenship claim of these per- 
sons as Indians was not involved in that case. The word ''citizen- 
ship," as used there and as has been used by the counsel for the Gov- 
ernment, means that the right as freedmen was considered a limited 
citizenship. They made use of the term citizenship and that is the 
reason why the Supreme Court of the United States made use of that 
term. It had no reference to the claim of these people, now that 
the}' are citizen Indians. 

Now, I shall further refer to this decision of Mr. Campbell. He 
has rendered many decisions in recent years, and if the conmiittee 
were willing to listen to a long discussion of that matter I could con- 
vince you that this decision of !Mi". Campbell is not entitled to that 
weight which would cause this committee or Congress to reverse the 
work of the Government in citizenship matters for the ])ast ten years 
and to deprive the tribes of the protection of their own laws, customs, 
and usages which have grown uj) for their own ])rotection and which 
the Government of the United States must follow in the making of 
these citizenshij) rolls. 

I do not think Mr. Campbell's decisions are entitled to that weight 
which would have that effect on Congress. Mr. Campbell has ren- 
dered several decisions, which, if they stand, will deprive the tribes of 
many millions of dollars. lie has held that certain decisions of the 
Choctaw and Chickasaw citizenship court, which Congress created, 
and which cost the Government more than $50,000 in salaries and 
expenses^ are void. He has held that certain final decisions rendered 
by that tribunal should not be observed, and that the persons thus 
denied should be enrolled by the Secretary of the Interior. He has 
held many other things which are wrong and disastrous to the tribes. 
The statement was made yesterday with regard to the Mary and 
Elizabeth Martin case. That court held that the white child of an 
intermarried white person was not entitled to citizenship, and that 
the right of an intermarried white person was a personal right, a 
right personal to the individual, and that it could not be forfeited. 
Now, the Choctaw and Chickasaw citizenship court held that, and 
ISIr. Campbell has overruled that decision, and has held that a white 
man who marries an Indian woman and dies, that that confers 

Senator McCumber. If he marries a white wife they are both white. 

Mr. Cornish. Both white; Mr. Campbell held that that child, the 
child of two white people, is entitled to citizenship. The law was 
declared by the Choctaw and Chickasaw citizenship court, which I 
have always maintained is the superior citizenship tribunal of the 
United States. In 1896 the Comnussion acted upon questions of law, 
the United States court acted upon questions of law, the Secretary of 
the Interior acted upon questions of law, and, finally, in 1902, after 
the citizenship matters had gone on for years and years, they were all 
at sea and Congress in its wisdom saw fit to create the Choctaw and 



I 



CHOCTAW AND CHICKASAW INDIANS. 57 

Chickasaw citizenship court. While its jurisdiction was Hmitecl to a 
trial and disposition of the cases arising tinder the act of June 10, 1896, 
yet we have always contended that the declarations of law by that 
court shoidd be followed In* the Commission of the Fiye Civilized Tribes 
and by the Secretary of the Interior. It was created for the purpose 
of summing up all these conflicting decisions, and we contend that its 
declarations of law should be followed in ])arallel cases. 

The departmental ijrocedure is that when a decision is rendered by a 
subordinate ofhcer or the Interior Department or any other De])art- 
ment, each Department having its Assistant Attorney-General, it is 
usual if it is felt that rights have been violated to ask the head of the 
Department to certify the question of law in that case to the Attorney- 
General of the United States. 

That was done in Indian citizenship up to a year ago, and we have 
had controversies with the Secretary of the Interior. We felt that the 
rights of the Choctaws and the Chickasaws were not only violated but 
outraged, and we fileil a motion for a reconsideration of those deci- 
sions. They were thoroughly argued, but the decisions were adhered 
to. Then we addressed a letter to the Secretary of the Interior 
imploring him not on our own account, but on account of the vast 
interests that we represented, that he do the very reasonable and usual 
thing by referring these decisions to the Attorney-Gen(>ral for review 
l)y him of the decisions of th(> subordinate of the Attorn(\v-General, 
and the Secretary of the Interior d(>clin(Ml to do that. 

Senator McCi MnKK. May I ask you one or two questions that fol- 
low on there ^ I'nder the Indian law if a white num married an 
Indian wonuin. wotild that make him become a citizen of the tribe? 

Mr. CfmxisH. Yes, sir. 

Senator McCimhf.h. If the woman died lie still l)e('ani(> a citizen of 
the tribe? 

Mr. CoKNisii. Yes, sir. 

Senator McCi'.MHEif. If he remained single he continued to be a 
citizen ( 

Mr. CoiiMSH. "^'es, sir. 

Senator MrCiwiUEU. If lie married in the tril)e he was a citizen? 

Mr. Cornish. Yes, sir. 

Senator MrCr^tBER. If he marricMl (uit of the tribe, does that 
forfeit his citizenshij) f 

Mr. CoHMsM. Xo, sir: under tlie laws of the tribe it did; but the 
Choctaw and Chickasaw citizenship court held against us to that 
extent. 

Senator McCi'.mhek. Did the laws of the tribe provide 

Mr. Cornish. Tluit his citizenship should be forfeited? Yes, sir; 
that his citizenship should be enjoyed only as long as he did certain 
thing.s — lived with his Indian wife and Indian family. If he aban- 
doned his Indian wife, or after her death reman-ied, he forfeited 
his citizenship. 

wSenator McCimher. TIhmi if he was a white man and married into 
the tribe, by virtue of that marriage, and married out of the tribe, 
he forf<'it(Hl his citizenshi])? 

Mr. Cornish. Yes, sir. 

Senator McCuMBER. But if another Indian, member of the tribe, 
should marry out of the tribe, he did not forfeit his citizenship? 

Mr. Cornish. Xo, sir; the white spouse would come into the tribe. 



58 CHOCTAW AND CHICKASAW INDIANS. 

Senator Long. Has that decision ever been submitted to the 
Attorney-General ? 

Mr, Cornish. The decision of the citizensliip court? 

Senator Stone. Suppose a white spouse should marry outside? 
In the case of her Indian husband, according to the tribal law, he 
would forfeit his citizenship? 

Mr. Cornish. Either spouse. 

Senator Brandegee. If ]Mi'. Campbell's opinion — the Assistant 
Attorney-General of the Department of Interior — is erroneous in so 
many cases in your opinion, why did you not ask to have it — in this 
Joe and Dillard Perry case — sent over for a review of these other 
cases ? 

Mr. Cornish. For this reason: If it is the view of this committee 
and of Congress that the citizenship law with reference to applications 
should stand as it is now, without amendment, that would not be of 
any use or benefit, because, as the law stands now — these people, not 
having on file applications as Indian citizens — there is no power to 
pass on their applications upon their merits at this time. 

Senator Brandegee. I understand; but when you know that this 
application for the repeal of that legislation which bars these people 
was pending I should suppose that you would have wanted to have 
that decision reversed, or, in other words, to have two strings to 
your bow. 

Mr. Cornish. That would be a matter that we would certainly 
insist upon if there should be a disposition on the part of Congress 
to reopen the question. 

It was said that the decision in the Mary and Elizabeth Martin 
case was the law now. That statement is not true. We succeeded 
in calling that case to the attention of the President of the United 
States. The ordinary course is to send these cases over to the 
Attorney-General for review. In this case the Secretary of the 
Interior positively and flatly declined to do that and said, "I will 
not only not certify the case to the Attorney-General for review but 
I will see to it that you do not take it to the Attorney-General for 
review." 

We succeeded in calling the Martin case to the attention of the 
President, and he made a peremptory order calling on the Commis- 
sioner of Indian Affairs for a report, and the Attorney-General sus- 
tained us and the citizenship court, and thus Mr. Campbell was 
reversed. 

Senator Long. That refers to white children with no Indian blood 
in their veins ? 

Mr. Cornish. Yes, sir; that is the only way we succeeded in get- 
ting a reversal in that particular case. That left vaiious other cases. 

Senator McCumber. Was not that decision a clear recognition of 
the right of the tribes to govern then' own citizensliip ? 

Mr. Cornish. I think so. We have taken some steps within the 
last two weeks to call these other cases to the attention of the Presi- 
dent of the United States, and I tliink he will take the same action 
as to those cases that he did in the Mary and Elizabeth Martin case. 

Senator Long. What do those other cases cover? 

Mr. Cornish. The finality of the decrees of the Choctaw and 
Cliickasaw court. In other words, there are certain persons in what 
is known as the West case who were denied by the citizenship court, 



CHOCTAW AND CHICKASAW INDIANS. 59 

and the decision became final under the law. Now Mr. Campbell 
holds that such decision was without jurisdiction. We are asking that 
the question of law as to whether the decision of 1902 was final and 
should be observed be passed upon by the Attorney-General. 

Senator Sutherland. On what ground did Mr. Campbell hold 
the decisions of the citizenship court invalid? 

Mr. Cornish. Upon the alleged ground that as to these persons 
who were passed on by the citizenship court, their names were 
included or appeared upon one of the tribal rolls, and under the law of 
1896 the Commission to the Five Civilized Tribes acquired jurisdic- 
tion only of those persons who were not on the tribal rolls. 

Senator Sutherland. Then he held that the citizenship court had 
erred in that particular case, and not that the court was without 
power ? 

Mr. Cornish. He held that in such a case the court was without 
jurisdiction. 

Senator Sutherland. Not without jurisdiction generally? 

Mr. Cornish. No, sir; that decision affected perhaps two or tlu-ee 
hundred individual persons. 

Now, in order that you may understand the matter a little more 
fully, his decision was, in the West case, that since the names of these 
particular persons appeared on some one of the tribal rolls of the 
tribes, that none of the tribunals of the Government, the Commission 
in 1896, nor the United States courts that followed, nor the citizen- 
ship court ever ac(|uire(l jurisdiction of them, for the reason that the 
tribal rolls as then existing " are hereby affirmed." 

If the law of 1896 had stood, and there had been no amendment of 
that law by Congress, there certiiinly would be ground for contending 
that his decision was correct, but the law of 1897 defines the "rolls of 
citizenship." The rolls of citizenship were confirmed in the law of 
1896, but the act of June 7, 1897, says: 

"That the words 'rolls of citizenship' as used in the act of June 10, 
1896, * * * shall be construed to mean the last authenticated 
rolls of each tribe which have been approved by the council of the 
nation * * * 

There are no rolls in the Choctaw and Chickasaw nations so 
approved, as required by these acts, and his conclusion is therefore 
necessarily erroneous. 

When those two laws are considered together and the light of the 
facts as to the tribal rolls the conclusion is reached that there are no 
rolls which were without inc^uiry by the Commission in 1896, and 
therefore no persons who were without its jurisdiction. 

Now, all this is in response to the suggestion that the Mary and 
Elizabeth Martin case was the law of the land, and had never been 
reversed. The case was taken to the Attorney-General of the United 
States and was reversed, and the decision of the citizenship court 
was upheld and these persons denied. 

Now, when this Joe and Dillard Perry case was argued, we filed a 
motion to reopen the case and the original decision was adhered to. 
Then it developed that these persons had not made the application 
which was required of all citizens of the Choctaw and Chickasaw 
nations under the provisions of the act of July 1, 1902. That is 
the law under wliich it was proposed to close citizenship matters, 
and provided that the application must be filled with the Commission 



60 CHOCTAW AND CHICKASAW INDIANS. 

by the 25th of December, 1902. Those persons were in the perfectly 
satisfactory enjoyment of their rights as freedmen at that time. 
They were in, as I say, the perfectly satisfactory enjoyment of 
their status as freedmen, and no applications were made, and as the 
law stands there is no power to pass on their applications as citizens. 

Now, it was urged at the last session that you should give them 
some relief. 

Senator Long. It later developed in that case that there was an 
application. 

^Ir. Cornish. In the Joe and Dillard Perry case in this way, and 
I beg the committee's pardon for taking up so much time, but if you 
wish me to make that point clear now I can. The individual persons 
in the Joe and Dillard Perry case have now been enrolled, because, 
as we show, under the law of 1902 there had been no applications for 
them under that law, and it is fm-ther shown that these particular 
persons had made application to the Commission under the law of 1896. 

The jurisdiction or the Commission under the law of 1896 no more 
parallels the jurisdiction of the Secretary under the later laws than 
the jurisdiction of the maj^or's court of the citj^ of McAlester parallels 
the jurisdiction of this committee. The jurisdictions thus conferred 
are diametricall}^ opposite, as opposite as jurisdictions could be. 
Under the law of 1896 the jurisdiction of the Commission was to 
admit to citizenship those persons who were not on tribal rolls, those 
persons who wished to be added to the tribal rolls from the outside 
and who wished to have conferred on them a tribal status and be 
placed on the rolls. Now that was the jurisdiction under the law of 
1896. 

The jurisdiction of the Commission and of the Secretary of the 
Interior imder the later laws is just the opposite; it is to make up from 
the tribal rolls a correct roll. When it developed that the Joe and 
Dillard people had not made application in accordance wdth the law 
of 1902, then they be^an to cast around and see if there was not some- 
thing in existence which could be construed into an application. So 
they found that application had been made by those persons in 1906 
and Mr. Campbell held 

Senator Long. That is, they applied as Indians and citizens? 

Mr. Cornish. Yes, sir. Now, Mr. Campbell held that that is such 
an application as may be considered an application within the meaning 
of the law of 1902, and the Joe and Dillard Perry people have been 
enrolled. I have not received a copy of the opinion, but I under- 
stand that the decision has lately been rendered. 

But as to the great bod}^ of these people, there is no contention that 
they did make application within the time required by the law for 
their em-ollment as Indians, and upon the suggestion of that of course 
they were out ; and the contention was presented at the last session of 
Congress that steps should be taken to relieve them from that situa- 
tion. Now, this committee did not feel and Congress did not feel that 
you could or would, or that it would be wise to reopen the matter as 
they wished it reopened. They contended, as they are contending 
now, that they had all along been asserting rights as citizens; that 
their enrollment had been over their protest, notwithstanding the fact 
that they applied voluntarily in 1898, and that continued until, per- 
haps, a year and a half ago. Notwithstanding all of that, they con- 
tended before you a year ago that they had been surging about the 



CHOCTAW AND CHICKASAW INDIANS. 61 

Commission always, and that there was ample evidence of the fact 
that the}' had made some application under the law of 1902, and you 
very generously gave them that relief and provided if it could be 
shown by any scrap of paper, it might be considered an application. 
And so it was provided in section 4 of the act of April 26, 1906 ■ 

That no names shall be transferred from the api^roved freedmen, or any other ap- 
proved rolls of the Choctaw. Chickasaw. Cherokee, Creek, or Seminole tribes, respec- 
tively, to the roll of citizens by blood unless the records in charge of the Commission to 
the Five Civilized Tribes show that applications for enrollment as a citizen by blood 
was made within the time prescribed bylaw, by or for the party seeking the transfer — 

That time was the 25th of December, 1902 — 

and said records shall be conclusive evidence — 

That means that unless the records showed that application was 
made that would be conclusive against the applicant that it was not 
made — 

Unless — 

Now, here is the very broad provision that was inserted — 

Unless it be shown by documentary evidence that the Commission to the Five Civil- 
ized Tribes actually received such application within the time prescribed by law. 

Now, thiit has been held by the Connnission to mean the develop- 
ment of anything in black and white, anything which is convmcitig of 
the fact, any scrap of paper of any character which can be developed 
to show that these people were from 1898 to the 25th of December, 
1902, asserting rignts as Choctaw and CliickasaW Indians. Mr. 
Ballinger's statement yesterday was that notwithstanding the broad 
and conipreliensive provision of that law (which we feel ought not to 
have been ]>!issed), yet notwithstanding the extent to which you went 
in that law, the statement of Mr. Ballinger was that not a shigle indi- 
vidual had ])een able to comply with that provision of that law. 

If those people were Choctaw and Chickasaw Indians and felt them- 
selves under the treaties and laws to be entitled to citizenship as Indi- 
ans; if they, as they now assert, had surged about the Commission 
from 1898, 'through the years of 1899 and 1900, 1901, and 1902, would 
it not ])e reasonable for us to assume, and would it not be easy for 
those j)eo|)le to show, that there was some scrap of paper on the part 
of some of them to show that there wtis some ell'ort to assert those 
rights;! Yet, according to the statement of Mr. Ballinger, notwith- 
standing this positive provision of the law of 1902, and notwithstand- 
ing the very broad interpretation of that law which the Commission 
has given, they fail to come within that provision. 

Senator McCuMBER. I understood Mr. Ballinger to say that they 
did have that evidence, but that by some construction of the Depart- 
ment they were not allowed to use it. I do not know that I remember 
what it was. 

Mr. Cornish. Xo, sir; in the Joe and Dillard Perry case they found 
this paper, which had been made under the law of 1896. 

Mr. Ballinger. Will the committee allow me to make a brief 
statement ? 

The Chairman. Yes, sir. 

Mr. Ballinger. My statement was this: That that documentary 
evidence was now obtainable, that the application was made, but the 
application having been removed fi-om the Commission to a United 



62 CHOCTAW AND CHICKASAW INDIANS. 

States court, and not being now in the possession of the Commission 
they held that imtler that section they could not consider it. 

^ir. Cornish. Who holds that? 

IVIr. Ballinger. The Commission holds it. 

Senator Long. To what United States court do you refer ? 

All-. Ballinger. The court of the southern district of the Indian 
Territory. These applications were made under the act of 1896 and 
transferred to the court. 

Senator McCumber. Do you mean to the Commission to the Five 
Civilized Tribes? 

Mr. Ballinger. Yes, sir; it was made to the Commission to the 
Five Civilized Tribes under the act of 1896. An appeal was taken 
fi'om the decision in that case to the court sittino- in the southern dis- 
trict of the Indian Territory. The record was transmitted to that 
court. The docket entry of the Conunission shows the receipt of this 
application, and yet the Commission holds that as the application 
itself is not in the possession of the Commission that it can not consider 
it. Just one word further. The Commissioner himself stated in his 
answer to the proceedings before the select committee that he has 
never construed or defined what documentary evidence was. 

jVIi". Cornish. All the records of the United States courts for the 
central and southern district of the Indian Territory are in his posses- 
sion now; the records are available. Under a law which this' Congress 
passed every person has free access to those papers. 

Senator Stone. There seems to be a dispute of fact here. 

All-. Ballinger. There is no dispute about it. 

Senator McCi:mber. Do you know of any reason why the Commis- 
sioner should refuse to receive the documentary evidence simply 
because the document was not in his physical possession but in the 
possession of the court ? 

Mr. Cornish. I do not think that is so; I know of no reason why 
that should be done. I hope you will understand this; I do not think 
as a matter of law that if it should develop that there were in those 
records made up under the law of 1906 papers which were filed for 
the establishment of that right under that jurisdiction, if there are 
papers in those batches of papers which refer to every one of those 
applicants, I do not believe that those are such papers as would be 
considered documentary evidence, giving force to those applications 
under the laws of 1898, 1900, and 1902. 

Senator Brandegee. What difference does the temporary juris- 
diction of the Commission make under either of those acts as to the 
application of a party claiming to go under the roll of Indians by 
blood as to which time it was made. If it was made when the Com- 
mission had one jurisdiction, why is not an application for a deter- 
mination of his rights as a claimant of Indian blood to go on that 
citizenship roll which the Commission, exercising a subsequent juris- 
diction, hold to be a continuing application; why do you claim that 
they should not so hold? 

Mr. Cornish. I do not think there is anything in common between 
the papers accumulated under a former law for one purpose and a 
subsequent law for another purpose. 

Senator McCumber. These papers do not state under what law 
they said they would receive it. If there was documentary evidence, 
it meant evidence in a document, or a written instrument. 



CHOCTAW AND CHICKASAW INDIANS. 63 

Mr. CoKXisii. This view expressed by me is very largely academic. 
The decision is against me by the Commission. The Commission has 
held tliat if any sort of a document is found in these papers it nuist be 
considered an appHcation. 

Senator McCumber. What I want to get at is whether or not the 
Commission has recognized tliat to be a correct proposition of law 
and refused those ])apers. 

Senator Bkandfxjee. Those papers were not presented, as the 
Commission held, and, if so, I would like Mr. Ballinger to read it. 
Do tliey hold that all documentary evidence must be in the physical 
possession of the Commission itself, and that it is not sufficient, if 
that documentary evidence exists in the files of the United States 
court in the Indian Territory, ahhough the record of the Commission 
itself shows that there had l)een sucli an ap])lication nnide. 

Mr. CoRXisii. I do not tliink tliat they have so held. 

Senator Bijaxdegee. I woukl like to iuive Mr. Ballinger read that. 

Mr. Ballinger. I will read the copy of the letter inclosed to the 
attorney in this case, signed by C. F. Larrabee, Acting Commissioner 
of Indian Affairs, dated December 3, 1006, in which he sets out the 
decision in this case. 

Senator Bp.axdegee. That is addressed to whom ( 

Mr. Ballinger. It is addressed to the honorable Secretary of the 
IntcM'ioi-. It is the decision of t h(> Coininission, alhrmed and trans- 
mitted. It is as follows: 

The rt'cords of iho Coniini.^sion and of his office failing to show that any application 
had Ix'f-n niaflo for the enrollment of the persons named l)y Mr. Lee in his petition of 
Fehniary \'2. WW), as citizens l)y blood of the Chickasaw Nation, prior to December 
25, 1!K)2. the ( "ominii<sioner .^uys that Mr. Lee now seeks to invoke the aid of the records 
of the United States court for the punx>se of showing that such an ajjplication was 
made under the provisions of the act of June 10, 189G. 

Senator Clark, of Wyoming. Who are the persons named? 
Mr. Ballix(;er. Calvin Newberry and his children. The Com- 
missioner refers to this as Mr. Lee's petition. He filed it as attorney. 
Senator Stone. ^Vho is Mr. Lee ^ 
Mr. Ballinger. This is Mr. Lee sitting here. 
Senator M( CiMBER. Please read that again. 
Mr. Ballinger (reads) : 

The records of the Commission and of his office failing to show that any application 
hafl been made for the enrollment of the persons named by Mr. Lee in his petition of 
February 12, L9()(J, as citizens l)y blood of the Chickasaw "Nation, prior to December 
25, 1!)02, the ConHni.-<sioner says that Mr. Lee now .seeks to invoke the aid of the records 
of the I'nited States court for the purpose of showing that such an application was 
made under tlie provisions of the Act ot June 10, 1896. 

What higher records could be envoked than the records of the 
United States? 

Senator Long. Read what was done on that. 

Mr. Ballixger. lie cites the fact that the Department held on 
May 25, 1906, in the Cherokee enrollment case 

Senator Clark, of W^yoming. What did he hold in that Newberry 
case ? 

Mr. Ballinger. He holds here that as that application does not 
appear of record '^ 

Senator LoxG. Wliere is that — that is wdiat I want to hear. 



64 CHOCTAW AND CHICKASAW INDIANS. 

Mr. Ballinger. The Commissioner quotes from section 4 of the 
act of Congress approved April 26, 1906, as follows: 

That no name shall be transferred from the approved freedmen, or any other 
approved I'olls of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole tribes, 
respectively, to the roll of citizens by blood unless the records in charge of the Com- 
missioner to the Five Civilized Tribes show that application for enrollment as a citizen 
by blood was mach; within the time prescribed by law, or by or for the party seeking 
the transfer, and said records shall be conclusive evidence as to the fact of said appli- 
cation, unless it be shown by documentary evidence that the Commission to the Five 
Civilized Tribes actually received such application within the time prescribed by law. 

Senator McCumber. That is a different thing entirety. 

Mr. Ballinger. It is in here. 

Senator Long. Proceed, Mr. Cornish. 

]\Ir. Cornish. I had just quoted Mr. Ballinger as stating on yester- 
day that this provision of this law, however broad it is, is of no benefit 
to him. If the fact should be established as to the ])apers filed with 
the Commission in 1S96, as suggested, that would not affect a half a 
dozen people. That is of no general application, and whatever bene- 
fits this law confers upon him, such as he reads in this case, he would 
have those benefits imdoubtedly under the decision of the Secretary 
of the Interior and the Commission at this time, notwithstanding our 
view, as stated before, that such papers should not be considered an 
application within this law. The Commission and the Secretary hold 
otherwise, and if that ])aper exists in that wa}", and if other papers 
exist such as those, those papers will be considered documentary evi- 
dence w ithin the meaning of this law, and these persons Avill be con- 
sidered as having gotten their application within the time, and their 
case will be passed upon as in the light of the Joe and Dillard Perry 
case. 

His general statement was (excluding the people who raa}^ have 
applied in 1896) that this was of no benefit to him. 

Now, I suggest that it does seem that if these people were surging 
around the Commission and tlie vSecretary, from 1898 down to recent 
5'ears, confident of their own right as Indians, and had been certain 
of that tlirough all those years, it does seem under the ver}^ broad 
provision of this law that there should have been some record of these 
insistent applications on their part, and some of them could have 
come within the purview of this law. 

Now, just a word \\ ith reference to marriage and divorce in the 
Choctaw and Chickasaw nations. 

Senator Stone. If tliis amendment proposed by Mr. Ballenger 
should be agreed to by the committee and Congress, what woidd it 
open up ? What proof would be required to establish it ? 

Mr. Cornish. Simply the oral evidence of blood on the part of 
every individual who could establish by oral evidence, or who could 
procure evidence orally in any way of his Indian blood. This would 
absolutely destroy every safeguard given us bj^ the customs and 
usages of the tribe, and every safeguard given us by the laws of 1898, 
1900, and 1902; it would repudiate the obligation of the Government to 
observe the tribal rolls and the laws, customs, and usages in making 
up the tribal rolls. The subject could not possibly be opened any 
broader than is proposed. 

Just a word with regard to marriage and divorce in the Choctaw 
and Chickasaw nations. The marriage relation is observed as strictly 
as it is in anj' surrounding State. The earliest Choctaw marriage 



CHOCTAW AND CHICKASAW INDIANS. 65 

law was in 1835, and their provision of laws has been continued from 
that time down to the present tin;e. These laws, covering; the whole 
subject of nuirriage, divorce, alimony, polygamy, adultery, legiti- 
macy, and legitiiuacy of issue appear in certain printed volumes as 
f»)llows: " Laws of the Choctaw Nation, 1869;" "Laws of the Choc- 
taw Nati(m, 1894," and "Constitution, Treaties, and Laws of the 
Chickasaw Xation, 1898," and are as follows: 

LAWS OF THE CHOCTAW NATION, 1869. 

(Page 70.) 

AN ACT Deflnijig what constitutes lawful matrimony. 

kSec. ]. Be it enacted by the general council of the Choctaw Nation assembled, That the 
following iiiodo of matrimony shall be lawful in this nation, viz. the parties shall go 
before any captain or preacher of the gospel in the nation, who shall ask the groom: 
'"Are yf>u willing to marry this woman whom yon hold by the hand as your lawful 
wife?" If he .'<ays yes, then the captain or the preacher of the gospel shall then ask the 
woman: "Are you willing to become the wife of this man who holds you ])y the hand?" 
If she .says yes, or l)e silent, he shall .say: " I pronounce you man and wife:" Provided, 
All man'iages previous to this act .><hall be valid and lawfid. and all property shall upon 
the death of the husband descend to the wife and children of the deceased husband, 
and in ca,se of the death of the wife the husband .shall inherit the estate. 

Approved Octobers, 1835. 



(Page 71.) 
AN ACT Allowing the Choctiiws to intermarry without any regard to ilistiiif tion as to Iksa. 

Skc. 5. Be It enacted by the general council of the Choctaw Nation assembled, That the 
custom of not intermanying with their own Iksa among the Choctaw peophi shall for- 
ever be abolished; and all persons, without any distinction of Iksa, are left to make 
their own choice as to whom they shall many. 

Api)r(ived October fi, 1830. 



(Page 93.) 
AN ACT Doclnring the punishment for separating man and wife. 

.Sec. 2. Be it enacted by the general council of the Choctaw Nation assembled. That from 
and after the passage of this act, anv person who shall be found guilty of taking or 
separating a wdman from her husl>and who was lawfullv married, he or they eo offend- 
ing .shall pay a line of ten dollars which shall go to the district treasury, and the parties 
restored to each other if they wi.sh it. 

Approved October 12, 1847. 



(Page 105.) 
AN ACT Directing any person marrying runaway matches to be fined. 

Sec. 13. Be it enacted by the general council of the Choctaw Nation assembled, That 
from and after the ])assage of this act, that any capta'n or minister of the gospel, or any 
other person, who shall many or join together in wedlock any runaway matches, shall 
be fined twenty-five dollars for every act they violate of the above law, and all such 
marriages shall not be considered lawful, and all fines imposed under this law shall 
go to the district in which such fine may be imposed. 

Approved October 11, 1849. 

S. Doc. 257, 59-2 5 



66 CHOCTAW AND CHICKASAW INDIANS, 

(Page 105.) 
AN ACT Declaring piuiishinent for polj-gainy. 

Skc. 14. Be it enmied by the f/eneral council of the Choctaw Nation assembled, That 
from and after the passage of this act that any person or persons who shall be con- 
victed of the crime of polygamy, or of livingwith each other in adultery, shall be 
liable to indictment before any court in this nation, and fined not exceeding twenty- 
live dollars, noi- less than ten dollars for each of such offences. 

And be it Jiirthei- enacted, That after the passage f)f this act all peison or persona 
who may be living together out of wedlock shall be compelled to l)e lawfully joined 
together, or (he party refusing so to do, shall be indicted and fined not less than ten 
dollars, nor ( xceeding twenty-five dollars for every such offence. 

And be it further enacted, That the informant in all such offences as above specified 
shall be entitled to and receive oni -third of the tines thai may l)e so collected, and, 
after deducting the fees of the districl attoriiey. the remainder shall l)ecome district 
funds. 

October II. 181!). 



(Page 106.) 
AN ACT Compelling white man living witli an Indian woman to marry her lawfully. 

Skc\ 15. Be it enacted by the general council of the Choctaw Nation assembled, That 
every white man who is living with Indian 'w^oman in this nation without being 
lawfully married to her shall be required to marry her lawfully or be compelled to 
leave the nation, and forever stay out of it. 

Be ilfurthei- enacted, That no white man who is under a bad character will be allowed 
to be united an Indian woman in mai'riage in this nation under any circumstances 
whatever. 

Approved, October, 1849. 



(Page 115.) 
AN ACTAuthorizing tlie Judges and preachers of the Gospel to solemnize the rites of matrimony. 

Sec. 28. Be it enacted by the general council of the Choclav: Nation assembled, That 
from and after the passage of this act it shall be lawful for all the judges of this nation 
and preachers of the Gospel to solemnize the rites of matrimony and issue certificates 
thereof, if required, and be allowed and receive for every such service two dollars, 
to be paid by the parties so joined together. 

And be it f wilier enacted. That the law passed in session 5th, section 3rd, so far as 
relates to the fees, be and is her(»by repealed. 

Approved Oct. 17, 1850. 



(Page 116.) 
AN ACT Providing at what age marriage may be contracted. 

Sec 29. Be it enacted by the general council of the Choctaw Nation assembled, That 
from and after the passage of this act that every male who shall have arrived at the 
full age of eighteen years, and every female who shall have arrived at the full age 
of sixteen years, shall be capable in law of contracting marriage. But if under these 
ages their marriage shall be void, unless free consent by the parents and relations 
or guardian have been first obtained. 

Be it further enacted, That whoever shall contract marriage in fact contrary to the 
prohibition of the preceding section of this act, and whoever shall knowingly sol- 
emnize the same, shall be deemed guilty of high misdemeanor, and shall, upon con- 
viction thereof, be fined or imprisoned at the discretion of the court. 

Approved, October, 1850. 



CHOCTAW AXD CHICKASAW 1>CDIANS. 67 

(Page 153.) 

AX ACT Legitimatizing tho fhildren of William a ndJane Guy. 

Sec. 21. Be it emtcted by the General Coumil of the Choctaw Nation assembled. That 
from and after the passage of this act, Eliza Jane, Serena Josephine, William Malcom, 
Mar\- Angeline, James Henry Harris. Lucinda. and Douglas Jackson Guy, children 
of William Guy, are. and they are hereby declared to be, the lawful heirsof Jane Guy, 
deceased, and William Guy. of Blue ('("ninty. Pushamataha district of the Choctaw 
Nation. 

Approved Xovemlx-r 12. l8o(J. 



( Page 204. ) 
AN ACT Kntitli'd an ait defining what shall constitute unlawful matrimony, the crime of incest, etc. 

Sec. 1. Be it enacted by the Genrral Coiitwil of the Choctaic Xatioyi, That the son shall 
not man^' his mother. 

The i^on shall not marr}' his step-mother. 

The brother .-;hall not marn,^ his sister nor his sister's daughter. 

The father shall not marry his daughter. 

Tile father siiall not marry his daughters daughter. 

Tile ."ion shall not marry his father's daughter begotten of his .«tep-mother. nor his 
aunt, being iiis fallier's or mother's sister. 

The father shall not marry his .^on's widow. 

A man sliall not marry his wife's daughter, or his wife's daughter's daughter, or his 
wife's ton's daughter, and the like prohibition shall extend to females within the same 
degrees, and all marriages of thi.- nature are hereby declared incestuous and void. 

Ai)proved 2''.lb (i.i..l.r.r Is-'.x 



( Page 343.) 
.VN ACT Concerning divorce and alimony. 

Skc. 1. Be it enacted by the General Council of thf Choctaw Xation assembled, That all 
marriages which are prohibitetl l)y law. on account of the con.«anguinity between the 
parties or on account of either of them having a former husband or wife then living, 
.«hall. if .soleiimi/ed wilhiii tliis nation, be absolutely void, without any degree of 
divf)rce or other legal i)roceedings. 

Sec. 2. Beit further enacted. That the circuit court in the county where the plaintiff 
resides has jurisdiction of all ca.ses of divorce and alimony and of guardian.'^hij) con- 
nected therewith. 

Sec. 3. Be it further enacted. That the petition fi»r divorce, in addition lo the facts 
on account of wliich the plaintiff claims the relief sought, must state that he or she has 
been, for the last six months, a resident of the county and that the application is not 
made through fear or restraint or out of any levity or collusion with the defendant, 
but in sincerity and truth for the purpo.se set forth in the petition; it must also be 
sworn to by the plaintiff. 

Sec. 4. Be it further enacted. That divorces from the bonds of matrimony may be 
decreed against the husband in the following cases: First, when the defendant at the 
time of his marriage was imjjotent: seccmd, when he had a lawful wife then living; 
third, when he has committed adultery subsequent to the marriage; fourth, when he 
willfully deserts his wife and absents himself without a reasonable cause for the space 
of one year; sixtli, when after marriage he becomes addicted to hal)itual drunkeness; 
seventh, when he is guilty of such inhuman treatment as to endanger the life of his 
wife. 

Sec. 5. Be it farther enacted, That the husband may in all cases obtain a divorce from 
the wife for like causes. 

Sec. G. Be it further enacted, That if the defendant does not appear and answer the 
petition at tlie proper time, the court, if satisfied that the complainant is the injured 

fiarty. may decree a dissolution of the marriage contract; or when the defendant can be 
ound, it may, in its discretion, bring him or her in by attachment and compel him or 
her to answer. 

Sec. 7. Be it further enacted. That when a divorce is decreed, the court may make 
such order, in relation to the children and property of the parties and the maintenance 



68 CHOCTAW AND CHICKASAW INDIANS. 

of the wife, as shall be right and proijer; subsequent changes may be made l)y the court 
in these respects where circumstances render them expedient. 

Sec. 8. Be it further enacted. That when a divorce is decreed, the parties shall have the 
right to divide such property equally that may have been jointly accumulated while 
living together. 

Sec. 9. Be it further enact cd. That no decree of divorce shall affect the legitimacy of 
any child begotten within the lionds of lawful wedlock. 

Sec. 10. Be it further enacted, That all acts or parts of acts heretofore passed coming 
in any wise in conflict with the provisions of this act be, and the same are hereby 
repealed, and that this act take effect and be in force horn and after its passage. 

Approved, October 30th, 1860. 



(Page 385.) 
AN ACT Entitled An Act legalizing the heirs of Curtis Grubbs and Elizabeth McLaughlin. 

Sec. 1. Beit enacted by the General Council of the Choctaw Nation assembled, That the 
children of Curtis Grubbs and Elizabeth McLaughlin are hereby rendered and made 
legal and legitimate children of the said parties in as full and efficient manner as if the 
same had been in legal wedlock. 

Sec. 2. Be it further enacted. That said children — Mary Jane, Benjamin Forbis and 
Robert Grubbs, the issue of Curtis Grubbs and Elizabeth McLaughlin — are hereljy ren- 
dered capable in law to inherit, take and receive any property or profit that they might 
or could have done were they l>orn in legnl wedlock. 

Sec. 3. Be it further- enacted. Thai this act take eff'^ct and be in force from and after 
its passage. 

Approved, October 8, 1S()3. 



LAWS OF THE CHOCTAW NATION, 1894. 

(Page 24.) 

Sec. 24, Article 7, Constittition of 1859. 

Divorces from the bond of matrimony shall not be granted but in cases provided for 
by law. 



(Durant— Page 205.) 

Section VI. — Polygamy and adultery. 

1. Be it enacted by the general council of the Choctaw Nation assembled:^ Any person or 
persons who shall be convicted of polygamy or living with each other in adultery, shall 
be liable to indictment before any court in this nation and fined not exceeding twenty- 
five dollars nor less than ten dollars for each of such offences. Any person or persons 
who may be living together out of wedlock shall be compelled to be lawfully joined 
together, or the party refusing so to do shall be indicted and fined not less than ten 
dollars nor exceeding twenty-five dollars for every such offence; and the informant 
in all such offences as above specified shall be entitled to and receive one-third of the 
fines that may be so collected, and after deducting the fees of the district attorney the 
remainder shall become county funds. 



(Durant— Page 205.) 

Section VII. — Incest. 

1. Be it enacted by the general council of the Choctaiv Nation assembled:tThe son shall 
not marry his mother; the son shall not marry his stepmother; the brother shall not 
marry his sister nor his sister's daughter; the father shall not marry his daughter; 
the father shall not marry his daughter's daughter begotten of his Btepmother,[nor his 



CHOCTAW AND CHICKASAW INDIANS. 69 

aunt, being bis father's or mother's sister; the father shall not marry his son's widow; 
a man shall not marry his wife's daughter, or his wife's daughter's daughter, or his 
wife's son's daughter, and the like prohi1:)ition shall extend to females within the same 
degrees, and all marriages of this nature are hereby declared incestuous. If any per- 
son shall marry within the degrees prohibited by law, on conviction thereof they shall 
be fined two hundred dollars, or each receive one hundred lashes well laid on their bare 
backs, and such marriage is declared incestuous and A'oid. If any persons who have 
been divorced for incest shall, after such divorce, cohabit or live together as man and 
wife, such persons so offending shall be deemed guilty of incest and fined, on convic- 
tion, two hundred dollars, or receive two hundred lashes, during two days, well laid 
on the bare back, or both, at the discretion of the court. 



(Durant— Page 206.) 

Section VIII. — Intermarriage between Choctaws and negroes. 

1. Hi' it enacted by the general coitnnl of the Choctaw Nation assembled: It shall not be 
lawful for fi Choctaw and a negro to marry; and if a Choctaw manor Choctaw woman 
should marrj' a negro man or negro woman he or she shall be deemed guilty of a felony, 
and sliall be proceeded against in the circuit court of the Choctaw Nation having juris- 
diction the same as all other felonies are proceeded against, and if proven guilty shall 
receive fifty lashes on the bare back. 



(Page 233.) 

Skction I. — Maniage. 

Hf d enacted hi/ tlie general council nf the Choctaw Nation assembled, Every male who 
shall have arrived at the full age of eighteen years and every female who shall have 
arrived at the full age of sixteen years shall be capable in law of contracting marriage, 
provided no otlicr legal jmihibition exists. But if imder tliese ages, their marriage 
shall be void, unlc.'^s free consent by the parents and relations or guardian has been 
first obtained. W'lioever shall contract marriage in fact contrary to the j)r()hibition 
of this section, and whoever sliall kuMwingly solemnize tlie same shall Ik; l)oth be 
deemed guilty, one (jr both, of iiigli mi.'^demeanor. and shall upon conviction thereof 
be fined or imprisoned, at the discretion of the court. It shall be lawful for all the 
judges of this nation and i)reachers of the gosj)el to solemnize the rites of matrimony 
and issue certificates thereof, if requested, and be allowed and receive for every such 
service two dollars, to be paid by tne parties so joined together. .Ml marriages which 
are ]jrohibited by Uiw on account of consanguinity between the parties or on account 
of eitlier of them liaving a former luisl)and or wife then living shall, if .solemnized 
within this nation, be absolutely void, without any decree of divorce or other legal 
proceedings. 



CONSTITITIOX, TKi:.\TlES. .\XD LAWS OF THE CI1ICK.\SAW NATION 

1899, 

(Page 6.) 

Section 15. article 1. constitution of 18(i7. 

Neither polygamy nor c-oncubinage shall be tolerated in this nation from and after 
the adoption of this constitution. 



(Page 18.) 

Section 4. general provisions of the constitution of 1867 . 

Divorces from the bonds of matrimony shall not be granted but in cases provided 
for by law by suit in the district court of this nation. 



70 CHOCTAW AND CHICKASAW INDIANS. 

(Page 76.) 
AN ACT To record marriages, etc. 

Section 1. Be it enacted by the legislature oj the Chickasaw Nation, That from and 
after the passage of this act all persons manying in this nation shall have the same 
reported in the clerk's office of the county court in the county in which they may 
reside. 

Sec. 2. Be it further enacted. That all persons neglecting to record their marriages 
within one month from the time they are married shall be fined in a sum not less than 
five nor exceeding ten dollars, at the discretion of the court having jurisdiction of the 
same. 

Sec. ?>. Be it further enacted. That all fines imposed under this act shall be collected 
by the sheriff or constable. ])y order of the county court, in the county in which such 
violation may have occurred . 

Sec. 4. Be it further enacted. That all maiTiages in this nation shall be solemnized 
by any judge or ordained preacher of the gospel. For every couple joined together 
in the bonds of matrimony the person pronouncing the ceremony shall for every such 
service receive the sum of one dollar from the persons joined together. 

Sec. 5. Be it further enacted, That all persons who are living together out of wedlock 
shall be compelled by the county judge to be lawfully joined together in the bonds of 
matrimony, and any person refusing to be lawfidly joined together shall be compelled 
to pay a fine of not less than twenty-five nor exceeding fifty dollars. 

Sec. 6. Be it further enacted, That the county judge shall cause all fhies imposed 
under the above act to be collected l)y the sheriff or constable, and wlien collected 
to be placed in the county treasiu-y for county purposes. 

Approved, October 12, 1876. 
B. F. Overton, Governor. 



(Page 78.) 

AN ACT To legalize iiiarri.agos solemnized by licensed preachers. 

I'HEAMBLE. 

Whereas it is enacted in section 4 of the "Act to record marriages" that any judge 
of the Chickasaw Nation, or any ordained preacher of the gospel, sliall have the power 
to perform the marriage ceremony; 

And whereas many of our citizens have been united in the Ixmds of matrimony 
by preachers not ordained nor authorized to marry individuals l)y the regulations of 
the church to which such pieachers l:)elnng; 

And whereas the district court of the Chickasaw Nation, in the county of Pontotoc, 
at the January term, did decide that all such marriages were authorized l)y the church 
to which such preachers l)elong, and consecpiently both canonically and legally vcjid; 

And whereas the person so maiTying, as well as the licensed preacher performing 
the ceremony, did the same in good faith and without any doubt whatever f>f the 
lawfulness of it; 

And whereas by the decision in question the parties living together are not husband 
and wife nor the children of such marriage legitimate: Therefore, 

Sec. 1. Be it enacted by the legislature of the Chickasaw Nation, That every riiarriage 
which has been solemnized Ijy any "I'. N." ordained licensed preacher within the 
limits of the ('hicka.saw Nation l^efore the passage of this act is hereby legalized, and 
every child born in marriage the offspring of it is hereby declared to be legitimate 
and shall be entitled to all the rights, privileges, and immunities thereof, just the same 
as if the marriage ceremony had been performed by any lawful judge of this nation 
or any ordained preacher of the gospel, as contemplated in the 4th section specified 
in the preamble of this act. 

Sec. 2. Be it further enacted. That all marriages which may hereafter be solemnized 
by licensed preachers shall be lawful just the same as if the ceremony was performed 
by any ordained minister of the gospel or judge of this nation, and this act shall be 
enforced from and after its passage. 

Approved, October 12, 1876. 
B. F. Overton, Governor. 



CHOCTAW AND CHICKASAW INDIANS. 71 

(Page 104.) 
AN|ACT To prohibit polygamy. 

Sec. 1. Be it enacted by the legislature of the (Jhickasaw Nation, That from and after 
the passage of this act no citizen of this nation shall be allowed more than one lawful, 
living wife or husband, and every person violating this act shall be deemed guilty of 
polygamy and shall be subject to indictment, trial, and punishment by the district 
court of the county where the offense may have been committed. 

Sec. 2. Be itfurtJier enacted, That polygamy shall consist in being married by any judge 
of this nation or other person lawfully authorized to perform the marriage ceremony, to 
two or more men or women, as the case may be, the first husband or "wife being still 
alive, and undivorced by the district court of this nation, and all such marriages shall 
be void from the lieginning, just the same as if they had not been solemnized; and no 
rights of citizenship whatever shall be acquired l)y such unlawful marriages. 

Se(\ 3. Be it further enacted. That every person found guilty of polygamy shall be 
compelled to separate and remain apart until the flisaliility is removed and shall pay 
the cost of the suit and be fined fifty dollars; one half of the fine, when collected, shall 
go to the attorney prosecuting the suit, and the tither hall, with the cost of the suit, shall 
be paid into the national treasury by the collecting officer, at the end of every fiscal 
quarter, to l)e used for pul)lic purposes. 

Sec. 4. Be it further enacted. That should the party convicted of polygamy not be 
able to pay the fine and cost of suit, then and in that case, the party shall be committed 
to jail, with hard labor, for not less than one nor more than six months, at the discretion 
of the court, for the first offense; and for every succeeding offense, the last-mentioned 
time of imprisonment and hard laljor. together with the aforementioned fine and 
costs, shall be the punishment, and they shall be collected by the provisions of the 
"Act in relation to collection of bonds and fines." 



,\pi)n)ved, Octol)er 10, ISTfi. 



B. F. OvEitTox, Governor. 



(Page 112.) 
.\N ACT III relation to marriages iindor Choclaw law. 

Sec. J. Be it enacted by tlie legislature of the Chickasaw Nation, That from and after 
the pasi^age of this act all persons that were married under the Choctaw law, or by 
mutual consent of parties, who lived together as man and wife six months previous to 
the adoption of the constitution of the Chickasaw Nation, dated August :]0, 185(i, shall 
be compelled l)y the county judge to have the same established upim oath and recorded 
in the ollice of the county clerk. 

Sec. 2. Be it further enacted, That it .'^hall be tlie duty of the county judges to notify 
the people of their respective counties oi the passage of this act; and any person or per- 
sons who refuse or neglect to have their marriage reported within three months after 
the i)tv*.'iag<' of this act shall l)e compelled to pay a fine not less than five nor exceeding 
fifteen dollars, at the discretion of the court. 

Sec. ;3. Jie it further enacted. That all fines imposed under this act shall be collected 
by the sheriff or constable, and be })laced in the county treasury. 

Approved, October 17, 1876. 

B. F. Overton, Governor. 



(Page 122.) 
.\N .\CT Coneeriiing concubinage and adultery. 

Sec. 1. Be it ruarled by the legislature of the Chickasauj Nation. That when any per- 
son having a wife or husl)and, and shall be found living with or keeping another 
woman or man. shall Vje deemed guilty of (■(mcul)inage or adultery, and shall be sub- 
ject to indictment, trial, and punishment in the district coinl of the county where 
the offense may have been committed. 

Sec. 2. Be it further enacted. That every person found guilty of concubinage or 
adultery shall be compelled to separate forever and remain apart, and fined in the 
sum of 'fifty dollars and cost of suit; one-half of the said fine shall, when collected, 
^o to the attorney prosecuting the suit, and the other half to the national treasury 
for national purpcjses; said costs and fine shall be collected as other fines and costs are. 

Approved October 17, 1876. 

B. F. OvEKTON, Governor. 



72 CHOCTAW AND CHICKASAW INDIANS. 

(Page 224.) 
AN ACT In relation to divorce. 

Sec. 1. Be it enacted by the legislature of the Chickasaw Nation, Thai the district 
coiu-t of the Chickasaw Nation shall hear and determine all suits for the dissolution 
of marriages. The coiu-ts aforesaid are hereby invested with full power and authority 
to decree divorces from the bonds of matrimony in the following cases, that is to say: 
In favor of the husband where the wife shall have been taken in adultery, or where 
8he shall have voluntarily left his bed and board for the space of six months with 
the intention of abandonment; also in favor of the wife for the same offense. 

Sec. 2. Be it further enacted, That a divorce from the bonds of matrimony may be 
decreed in the following cases: Where either the husband or wife is guilty of excesses. 
cruel treatment, or outrages toward the other, if such ill treatment is of such a natm-e 
as to render their living together insupportable. 

Sec. 3. (Provides for procedure and for rights of children and of each party.) 

Sec. 4. Be it further enacted. That a divorce from the bonds of matrimony shall 
not in any wise affect the legitimacy of the children thereof, and it shall be lawful 
for either party after dissolution of marriage to marry again. 

Sec. 5. (Provides for taking of testimony and for appeals to supreme court.) 

Sec. 6. (Refers to debts and community prfiperty of parties.) 

Sec. 7. (Also refers to debts.) 

Sec. 8. (Refers to costs of suit.) 

Sec. 9. (Refers to collection of costs.) 

Approved October 12, 1876. 

B. F. Oveutox, Gorernor. 

Marriage licenses were issued; they are observed. Their require- 
ments as to marriage and divorce are just as strong and as strictly 
observed, and as generally observed, as they are in connection with a 
like number of people in am^ surrounding State. 

Those people have lived there with their slaves always, and they have 
regarded their slaves just as the people of Arkansas, Alabama, and 
the other Southern States. There have been no marriages between 
them and their slaves — I do not mean that there has not been a single 
instance — but I mean to say that it is against their laws; the laws 
have prohibited such marriages. 

Senator Long. Since when? 

Mr. Cornish. There has been considerable discussion as to when 
the fii'st law in the Chickasaw Nation was passed. There is a law in the 
Choctaw Nation, the date of the passage of which does not appear, 
and it has been contended by many that there was a law passed in the 
Cliickasaw Nation in the early seventies. But, be that as it may, a 
sentiment has existed, and that sentiment has been observed with 
practical unanimity by the Choctaws and Chickasaws, just as it has 
been observed by the other southern people in the surrounding 
States. So there has not been such a thing as marriage between 
Indians and freedmen women. 

Senator McCumber. There is one law of this character, of October 
30, 1888? 

Ml". Cornish. Yes, sir; that was the law to which you had reference 
yesterday. 

Senator McCumber. No; that is not the one. 

Mr. Cornish. There has been some discussion about marrying 
with persons of color, but the custom has existed, and it has been 
observed with almost universal unanimity. I do not mean to say 
that no one instance has occurred where a marriage ceremony has 
been performed between an Indian man and a negro woman, but I do 
say that the relations existing between the Choctaws and Cliickasaws 
and their slaves, their freedmen, has been the same relation that has 



CHOCTAW AND CHICKASAW INDIANS. 73 

oxisted in other southern conimunities between the white people and 
the negroes, and to say that the marriage relation has been estab- 
lished in a general way between those Choctaw and Chickasaw 
women is not true and is not established b}^ any evidence produced 
before this committee. 

Senator Sutherland. I thought some decision was referred to 
here from the supreme court of Alabama, which held that marriage 
was recognized where men and women simply lived together. 

Mr. Cornish. That discusses the doctrine of common-law marriage. 

Senator Sutherland. I understand that they held in that deci- 
sion that that form of marriage and form of divorce was recognized 
by the tribes. 

Mr. Cornish. I am not familiar with that decision. The Choctaws 
and Chickasaws left the State of Alabama in 1830, and any decla- 
ration which an Alabama court nuiy have made with regard to an 
Indian who resided in the State of Alabama would not have any 
reference to tlio laws, customs, and usages of tribes in Indian Terri- 
tory, where they have a written constitution and laws. I do say 
that the relations existing between the Choctaws and Chickasaws 
have been exactly the same as the relation existing, and which is 
universal, between the southern people and the negroes in any other 
southern conununity, and any mixture of the races resulting in social 
ostracism has resulted just as completely and just as rapidly as in 
any other soutliern conununity in the United States. 

Senator Bi'.andecee. There was no i^enalty, was there, attached 
to that |)rohibi(ing int(M'marriage ^ 

Mr. Cohnish. Yes, sir. 

Senator McCumber. Yes; it was n.ade a felony. 

Senator Brandegee. I mean the statute of 1S8S. 

Senator Long. WTiat does the statute say \\dth reference to that? 

Mr. Cornish. 1 am not able to give a reference to the particular 
statute in the Chickasaw Nation. 

Senator Clark, of Wyoiriing. Is there anything in this law of 1888 
whicli makes it a felony — an intermarriage of this sort? Is there 
an} thing in the law as to the |)r()i)erty rights of the children of such 
a marriage '. 

Mr. Cornish. 1 have not the law before me. 

Senator Long. It is in the law of 1888, I think. 

Mr. Cornish. Therefore, gentlemen, it comes down to this propo- 
sition. I do not mean to say that there has not been a marriage 
ceremony performed at some time in an isolated case between an 
Indian man and a colored woman, but such a condition is as rare as 
it is in any other southern State. 

Senator Lonc;. If there was such a marriage, how would the issue of 
such a marriage be treated by the court? 

Mr. Cornish. If the woman was a freedman, the issue would fol- 
low the status of the mother in pursuance of the customs and usages 
of the tribe, and become freemen and enjoy the rights of the mother. 

Senatoi- Long, lias there been any departure from that rule? 

Mr. Cohnish. Not so far as I know. I know that has been the 
custom and usage. 

Senator Stone. Supi)ose the mother was an Indian w'oman? 

Mr. Cornish. Then the progeny would be Indian, and would fol- 
low the status of the mother. 



74 CHOCTAW AND CHICKASAW INDIANS. 

Senator Sutherland. Is that the rule in the Choctaw tribe, that 
the child follows the status of the mother and not the father ? 

Mr. Cornish. If the mother is not in the enjoyment of citizenship 
rights, then the child would follow the status of the father, the test of 
all that being the existence of the tribal rolls themselves; the test of 
whether or not the child is legitimate, which the tribunals that Con- 
gress created are bound to follow, is an examination of the tribal rolls 
themselves. 

Senator Clark, of Wyoming. Suppose the father was an Indian 
and married a white woman, or had children by a white woman, the 
child would follow the status of the father? 

Mr. Cornish. Yes, sir; if it is a legitimate issue. 

Senator Clark, of Wyoming. Suppose the father was an Indian 
and married a free negro woman from Arkansas, or anywhere else, 
then what would be the status of the child; would it follow the status 
of the father? 

Mr. Cornish. I shall come directly to your question. I do not 
know of any instance of that kind, and I will say that if there are 
any such instances they are very isolated, very rare indeed; but in 
cases like that I would say, if that existed, it would result perhaps in 
social ostracism to the Indian man if the marriage was a marriage in 
good faith and the man lived, and they were in fact a famih', and 
recognized by the father, then I would say he would have brought 
about their enrollment. 

Senator Clark, of Wyoming. Suppose the father was an Indian 
and the mother an Indian woman, and there had been no marriage, 
what would be the status of the children? 

Mr. Cornish. You have reference to a common-law marriage. If 
it was merely intercourse and the children were not recognized by 
the father 

Senator Clark, of Wvoming. Suppose thev were recognized bv 
the father? 

Mr. Cornish. I would say he would have brought about their 
enrollment — found a way to bring their names on the tribal rolls. 
. Senator Clark, of Wyoming. What would be their legal status ? 

Mr. Cornish. If it is a common-law marriage within the require- 
ments of the law as to marriages, they would be legitimate children. 

Senator Clark, of W^'oming. Suppose it was a common-law mar- 
riage between the Indian and a negro woman? 

Mr. Cornish. I do not knovv- of any cases of that kind. I do not 
know that there any such instances, but I would say if it was in good 
faith a marriage, the children were legitimate, even in the absence of 
a marriage ceremony. 

Senator Stone. Do you mean in the absence of a law ? 

Mr. Cornish. The test of the whole matter would be the tribal rolls. 

Senator Clark, of Wyoming. No; that is not the test at all. The 
test is the customs of the tribe. That fixes the roll ; the roll does not 
fix the custom of the tribe. Now, my question is — the meat of my 
question is — whether or not there is an^^ difference in the status of 
the child when the father is an Indian, as to whether the mother of 
the child is a w hite woman or a negro woman ; if it makes any differ- 
ence with the status of the child. 

Mr. Cornish. I am not able to say, because the facts do not exist 
which you suppose; therefore, I have not had an opportunity to 



CHOCTAW AND CHICKASAW INDIANS. 75 

make inquiiy into it. Those facts do not exist. I do not mean to 
say there is no such case in the many thousand people. 

Senator Clark, of W3^oining. These are all those cases of mixed 
Indian blood, v.here the mother is an Indian and the father is a black 
man. I supposed it was just the other way. I had supposed that in 
nearly all those cases the father was an Indian and the mother was a 
negro. 

Xir. Cornish. Yes, sir; and the intercourse was wholly illegiti- 
mate, if there was the fact of the intercourse. Conceding the fact 
that those persons were begotten by Indian men in an intercourse 
which had no relation to a marriage, or any relations of husband and 
wife, they are illegitimate just the same as the mulattoes who have 
grown up in the South; that is all. The most that can be said is 
that it can not be contended that those children are the result of 
marriages in any sense of the word. 

Senator Clark, of Wyoming. I am jtfruid I have been groping in 
the dark. I h.id supposed that on those rolls there was some people 
with negro blood in them. 

Senator Lon(j. On the Indian roll? 

Senator Clark, of Wyoming. On the Indian roll. 

Mr. Cornish. That is true; it would not be nnpossible. I stated 
it, but it did not arise in the case you stated. If there be an Indian 
woman, she is in the enjoyment of her status; and if she had inter- 
course with a negro jnan the child would follow the status of the 
mother and be enrolled as an Indian. 

Senator Warner. Have you not stated that there are some cases 
where a full-fledged Indian married a negro woman? 

Mr. Cornish. No; I stated as a general proposition that there 
was a considerable number of persons enjoying citizenship who were 
possessed of negro blood, but I did not state how that condition arose. 
It did not and could not have arisen under the laws, customs, and 
usages of the tribe. 

Senator Si'therland. Do 3'ou mean to say that all those cases 
are cases of illegitimate children? 

Mr. Cornish. No; I did not mean to say that. There are 1,500 
of them. 

Senator Sutherland. Well, in the nuiiii ^ 

Mr. Cornish. In the main, yes, sir. 

Senator Sutherland. I understood it to be asserted here yester- 
day — although perhaps I am mistaken about it — that at least prior 
to the passage of this law of 1888, or whenever it may have been, 
that in the Choctaw and Chickasaw tribes it was recognized that 
where a man and woman had lived together without anything more 
being shown — lived together in the habit of marriage, or lived to- 
gether without the habit and repute of marriage — that that con- 
stituted a marriage under the rules and customs of the tribe. 

Mr. Cornish. No, sir; that has not been stated by me. 

Mr. BallingeR: Let us have that decision, please. When was it 
rendered, and by whom? 

Senator Long. As tlu'owing some light on what was done in this 
case by the Commission, in this report of the Commissioner of Indian 
Affairs on the bill which is similar to this amendment, he says: 

This Office on December 26, 1906, wired the Commissioner of the Five Civilized 
Tribes as follows: "Is it a fact that we enroll them as on the side of the father or 



7() CHOCTAW AND CHICKASAW INDIANS. 

inotlier?"' \o which the Acting- Commis.siuiu'r rc'pli('(l, uiuh'i- dale of .Septeinl>er 20, 
1907: "Re])Iying to your telegram 26tli instant, tribal authorities of the Choctaw 
and Chickasaw nations in preparing tribal rolls enrolled children of Indian women 
liy freedmen fathers as Indians. Tribal rolls clearly indicate that children of mixed 
freedraen and Indian descent follow status of mother." 

Mr. Cornish. There has never been, and can not be, an}^ contro- 
versy about what the tribal custom was. 

Senator Brandegee. Let me ask you if the contention of Mr. 
BalHnger that the word ''descendants" is synonymous with progeny. 
Then all the questions as to whether these claimants are legitimate 
or illegitimate, whether the}^ knew their rights, or whether they 
thought they were compelled to make application for the assertion 
of those rights are irrelevant and immaterial, are they not? 
Mr. Cornish. Very largely, if not entirely so. 

Senator McCumber. As I understand the general Indian custom 
is to recognize a woman outside of the tribe as belonging to the tribe 
when she marries a man in that tribe, and he remains. If he deserts 
his own tribe and goes to the tribe of the wife among the Indians, he 
becomes a member of the tribe to which the wife belongs. If that 
is the custom, it is more a question of which tribe they desire to 
remain m, but that ordinarily without a marriage of that kind the 
status of the child is f.dways governed by the status of the mother. 
Mr. Cornish. Yes, sir. 

Senator McCumber. But in the Choctaw and Chickasaw cases 
there was another specifil rule which arose by reason of their owning 
slaves, and which differentiated the case in this respect, that it did 
not recognize any child which was not one of regular marriage, where 
the mother Wf)s a slave, that it had to follow the status of the mother, 
even though it remained in and lived with the tribe. 

Mr. Cornish. Yes; the mother was in the enjoyment of a status of 
her own. 

Senator McCumber. It was not a citizenship status? 
Mr. Cornish. No, sir; it was considered a citizenship; it conferred 
property and was considered a limited membership. 

Senator Brandegee. Do you know whether the Creeks owned 
any slaves? 

Mr. Cornish. Yes, sir; the condition in the Creek Nation differed 
entirely from the condition in the other nations. The Creeks, in 
their relations with their slaves, are entirely different. That has been 
explained to me in a very interesting way and I shall state it very 
briefly. 

The Creeks occupied middle Alabama, and they had considerable 
trouble with the Government of the United States. A considerable 
portion of the Creeks and Seminoles are practically one tribe, and a 
consider::ble portion of them were driven out of Alabama and went 
into the Everglades of Florida. That was the place where every 
runaway negro went, and while the Creeks were inhabituig that part 
of the country, hiding fi-om the pursuit of Andrew Johnson and his 
army, these runaways were there, and in that way those relations were 
established in those times, and thus the relations between the Creeks 
and the negroes with whom they associated took on an entirely dif- 
ferent aspect from the relations existing between the other tribes and 
heir slaves — the Choctaws and Chickasaws and Cherokees. 

The Cherokees resided in northern Georgia and the Choctaws and 
Chickasaws resided in central Mississippi; they owned their slaves, 



CHOCTAW AND CHICKASAW INDIANS. 77 

antl when the}- emigrated they took then- slaves along with them, and 
the relations there beginning and existing between "the Choctaw an 
Chickasaw nations and their slaves paraHel in all respects the rela- 
tions existing between the white people and the slaves in other south- 
ern communities. They had much greater benefits, because since 
their freedom they have been permitted to occupy without restraint 
the land of the Choctaws and Chickasaws that they wished to cultivate. 

Senator Bhandegee. I really had in nu' mind the question whether 
the Creeks, if they did own slaves in the South, took them to^ the 
Indian Territory^ 

Mr. CoKXisii. Yes, sir; tluy took them to the Indian Territoiy, 
and I understand that there is a considerable portion of the citizenship 
of the CVeek tribe where the blood is just as pure as it is in the Choctaw 
and Chickasaw nations; but the condition is said to account for the 
fact that a great many Creeks are mixed with negroes. They have 
accepted the negroes on a difFerent footing from the rest of thetribes; 
but there can be no doubt on the pr()p()siti(m of the relations existing 
between the Choctaws and Chickasa\ys and their slaves. 

Xow, the dilliculty of the whole nuitter is that these j)eople are not 
wilhiig to accept this. What they are asking is that they be given 
legislation which will be for their special benefit. It has been sug- 
gested that perhaps there is some desire on the part of the Choctaws 
and Chickasaws to contest their claims because of the fact that they are 
negroes. That is not true. Does it not appear, when we examine 
the treaties and laws fi-om begiiming to end, what their ])osition is — 
not that it is the view of any of you gentlemen or any member of 
Congress, but it is their |)osition that they should be given special 
rights and privileges because of their negro blood? These people 
come within the purview of this law which I have read, the act of 
May 31, 1900, which provides, in terms, that no man, woman, or 
child shall be enrolled unless his name appears on some one of the 
tribal rolls of the Choctaw and Chickasaw nations, or children born 
of that person since he came on the roll. There are before the Com- 
mission to the Five Civilized Tribes applications which have been 
made and are to-day being made which can not be considered upon 
their merits, of perhaps 20,000 persons from the States of Texas and 
Ai'kansas and other States. I am eliminating the great horde of per- 
sons ^\'ho claim that they should be enrolled as Mississippi Choctaws. 
I have reference now to those persons who make no claims that they 
are Mississij)j)i Choctaws. 

There are thousands and thousands of persons who swear just as 
positiveh' and as absolutely and will be able to submit evidence just as 
convincing as these people that the}" are of Indian blood, and they 
are barred by this law and by the act of July, 1902, because of the fact 
that the law which governs the jurisdiction of the Commission and the 
Secretary is that the customs and usages of the tribes as reflected in 
their triljal rolls is and must be observed, and those people are out. 
I am certainly not urging on you gentlemen that legislation be passed 
which would open up the whole subject again as to those 20,000 per- 
sons who are cut out by this law; but when I suggest that condition, 
when I suggest that those people are willing to swear just as positively 
and it will be just as difficult, if not impossible, for the tribes to meet 
their evidence as it would be to meet the evidence of these irresponsi- 
ble people- — when the condition exists as I have stated, would it seem 



78 CHOCTAW AND CHICKASAW INDIANS. 

to be quite fair, since their status is exacth' what the status of the 
20,000 persons is, to confer special benefits on those people because 
of the fact that they are possessed of negro blood, rather than discrim- 
inate against them because the}^ are of negro blood ? 

So far as the law is concerned, so far as the power of the Govern- 
ment is concerned, so far as the jurisdiction of the tribunals of the 
Government is concerned, these 20,000 persons are out just as com- 
pletely and they are out because of the provisions of the same law that 
applies to these people. I do not mean to say that if it should appear 
to you with absolute clearness and positiveness that these people were 
entitled to citizenship and rights, that it would be entirely fair and 
just to exclude them under a provision contained in the law. But I 
am endeavoring to convince you why there is no good reason that 
this should be done. We stand perfectly appalled at what nia}' hap- 
pen. It is almost beyond the power of the human mind to conceive 
what may result if what these gentlemen insist upon should be done. 
There is no way of meeting this evidence. It means, if you make it 
possible by opening this subject, for Mr. Campbell's opinion to be 
observed and applied to tliis condition, that every negro woman in 
the Choctaw and Chickasaw nations who is willing to swear that she 
had sexual intercourse, illicitly or otherwise, with some Indian man — 
and it is always an Indian now dead — and this particular child 
resulting from that union, according to the decision of Mr. Campbell, 
without reference to the laws or the customs of the tribe, without 
reference to all that, according to ^Ir. Campbell's opinion, that par- 
ticular individual, on that evidence, will be entitled to be enrolled. 

Xow. there are from 1.000 to 1,500 of these persons, and it does not 
seem that their alleged rights have been suggested with sufficient 
strength and sufficient reasonableness to justify you in setting aside 
the laws or reversing the law of 1898, the decision of Mr. Vandevan- 
ter construing that law, the law of 1900, the law of 1902, and the law 
of 1906, and turning back the work of the Government for the past 
ten years and depriving the tribes of the safeguards that have grown 
up under their own customs, laws, and uses. 

Now, gentlemen, I believe I am through. I may say that the 
subject is such a vast one; the proceedings have been so intricate 
that it is difficult at a glance, with the time you gentlemen have to 
devote to this proposition, to understand the various points at which 
applicants may gain an advantage, and the rights of the Choctaws 
and Chickasaws and the safeg-uards which have grown up may be 
beaten down. 

Xow, a provision could not be more objectionable than is contained 
in the proposed amendment — 

That the Secretary of the Interior is hereby authorized and directed to transfer 
from the Choctaw and Chickasaw fi-eedman rolls to the rolls of citizens by blood of 
said nations the name of any person who is of Indian l^lood or descent on either his 
or her mother's or father's side 

Now, at that point. That has never been suggested before. Mr. 
Ballinger is the pioneer follo^^■ing Mr. CampbelL Mr. Campbell is 
the real pioneer of the proposition that Indian blood alone conferred 
upon the person claiming Indian blood the right to participate in the 
tribal property. It has never been suggested by any person repre- 
senting citizenship applicants before that blood alone — the establish- 
ment of some degree of Indian blood — was the only essential requisite 



CHOCTAW AND CHICKASAW INDIANS. 79 

to eiirollir.ent as an Indian and participation in the distribution of 
tribal property. 

Under tlie treaty of 1830 the tribal rolls were niade up. They were 
made up first from the enngrant class who did those things which the 
Government of the United States required of Choctaw Indians under 
the treaty of 1830; that was that they were required to remove to 
and live upon the land of Choctaws and Chickasaws. The Choctaws 
and Chickasaws have followed that rule, but in the main their rolls 
have been made up. first, froin that great class of persons who re -roved 
to and established their residence in the Choctaw and Chickasaw 
Nation, as the Government of the Ignited States required them to do 
as one of the comsiderations upon which they acquired that vast area 
of land. 

Secondly, the Indians that were the Mississippi Choctaws belonging 
to the class which remained behind them, from time to time came and 
were added to the tribal rolls. It was under those facts and these 
conditions and following those customs and usages that the tribes 
had made up their own tribal rolls. Now, this states, following Mr. 
Campbell. It says that the Secretary of the Interior may make 

Senator Loxc It directs liim to. 

Mr. Cornish. Yes; it directs him to transfer "the name of any 
person who is of Indian blood." Now, if you agree with that there is 
no way of describing what may happen. There are altogether 50,000 
persons who are ready to swear, and have sworn, to furnish evidence 
of the fact, whether it l)e good, bad, or indifferent. 

Senator Sutherland. This resolution does not reach them. 

Mr. Cornish. Oh, no; these })ersons are situated, so far as their 
Indian blood is concerned, just as those other persons, and the Com- 
mission and the Secretary of the Interior have followed the law very 
well. Mr. Campbell has gotten off in a remarkable way, but I think 
we can find some way of preventing the threatened damage. But, 
in a general way, they have followed the safeguards wl'ich Congress 
has put into the law, and it could not possil)ly be opened wider than 
is proposed. The amendment says: 

The name of any pcrsoji who is of Indian blood or descent on eitlu'r his or her mother's 
or father's side. 

Now, that absolutely destroys with one stroke the customs and 
usages of the tribes which have grown up for generations. 

Senator Long. That means either legitimate or illegitimated 

Mr. Cornish. Yes, sir. 

Senator Long. Just so they have blood? 

Mr. Cornish. Just so they have blood; so they can establish it 
by any evidence they see fit to offer. As I say, that absolutely 
wipes out and destroys the protection which we have had under the 
customs and usages of the tribe, under which the tribal rolls were 
made, and which your tribunals must follow, unless you see fit to 
change the law. The amendment continues — 

on either his or her mother's or father's side, as shown by either the tribal rolls, the 
records prepared by and in the custody of the Commissioner to the Five Civilized 
Tribes or the Department of the Interior, or by any governmental records in the 
possession of any Bureau, Division, or Commission, or any of the Departments of the 
Government, or any of the courts of the Indian Territory. 

Now, that provision has been drawn with some adroitness. They 
hope to impress you with the fact that they were not going to make 



80 CHOCTAW AND CHICKASAW INDIANS. 

use of the oral evidence, that they were not going to make use of 
these negro women who swear that the}" had sexual intercoiu'se 
with the Indians. They sought to make the impression that the 
records were to be observed in drafting this, that they are not going 
to make any contention of that kind because they feel that that 
would not be permitted by Congress. So they sslj: 

the records prepared by and in the custody of the Commissioner to the Five Civilized 
Tribes, etc. 

The committee is perhaps not aware that immediately after the ren- 
dition of this decision by Mr. Campbell these thousand or fifteen hun- 
dred applications were made before the Commissioner to the Five 
Civilized Tribes, and the oral evidence of these mothers of these ille- 
gitimate children has already been taken, and is considered a part of 
the record of the Five Civilized Tribes, and they, under this })rovision, 
would have the benefit of that evidence. So that first the inference 
evidently was, or the intention was, in drafting this, to convince you 
that they were not going to open up the matter by oral evidence, but 
this would give them the benefit of all that ex parte evidence. That 
can not be met. If it is permitted that an irresponsible negro 
woman — I do not say she is irresponsible because she is a negro — but 
if an irresponsible negro woman gives oral evidence that five years ago 
she had sexual intercourse with a particular Indian man who is dead, 
how can the tribes meet that? It can not be mei: ; it is impossible. 

Gentlemen, I stand appalled at what may result, and I really think 
the possibility of permitting a condition of that character will perhaps 
appall you gentlemen. I do not believe you are going to do it. 

Senator Warner. Were you present to cross-examine these ^^'it- 
nesses as attorney for the Indians? 

Mr. Cornish. We had a representative present in a great many 
instances. [Reading on:] 

and persons having rights conferred by this act shall be entitled to establish only by 
evidence their descent from persons of Indian blood and recognize the memliers of the 
tribes as appears from any such record. 

Now, that w^ould not only permit them to make use of all this oral 
evidence which has been taken before the Commission, but it would 
absoltitely deprive us of the benefit of the tribal rolls, so far as the fix- 
ing of the status of the father is concerned. They not only wish to 
be permitted to make use of this evidence, which has been taken under 
the circumstances I have described, as fixing the circumstances inider 
which the child was begotten, btit they wish not to be bound by the 
rolls in fixing the status of the alleged progenitor. [Reading on':] 

and persons having rights conferred by this act shall be entitled to establish only by 
evidence their descent from persons of Indian blood and recognized members of the 
tribe as appears from any such record. Provided further, That nothing herein shall be 
construed so as to permit the filing of any original application for the enrollment of any 
person not heretofore, and at the time of the passage of this act, enrolled as a freedman 
of either the Choctaw or Chickasaw Nation, or who has an undetermined application for 
such enrollment now pending, it l)eing the purpose of this act to provide only for a cor- 
rection of the enrollment of persons of Choctaw or Chickasaw Indian blood who have 
been enrolled as freedmen of said Nations 

Wliy not permit those people from Texas and other States ? There 
are 20,000 of them. They swear just as strongly, and in so far as the 
evidence is concerned, it is just as good as this evidence. Wliy keep 
them off? They swear that they have the blood; they have the right. 



CHOCTAW AND CHICKASAW INDIANS. 81 

They moved into the Choctaw Nation. Now they are cnt oflF just as 
these people are 

and no limitation of time in which to file original applications, or to perfect appeals, 
heretofore fixed liy law. shall be construed as a bar to rights conferred by this act; and 
any person so transferred may contest any allotment heretofore made to which he or 
she had a superior right at the time of his or her erroneous enrollment, provided, how- 
ever, that such contest shall be instituted within ninety days from the date of such 
transfer and that patent has not issued from such allotment. j 

Senator Long. Wh.at does that mean — "hR,s a superior right"? 

Mr. Cornish. The right of possession, I suppose. For instance, 
here is a particuLir person who had particuLir land. He is entitletl to 
that to the extent of 40 acres. But that would permit him to make 
out more. 

Senator Long. To make out an Indian allotment? 

Air. Cornish. Yes, sir. 

Senator Long. Also that has been allotted to some other Indian; 
is that what that means? 

Mr. Cornish. I think it does; yes, sir. 

Senator McCumbee. Did not a great many of these fi'eedmen settle 
and live on L:nd outside of their 40 acres? 

Mr. Cornish. Oh, yes; they occupied vastly more than 40 acres. 

Senator McCumber. And would that not refer to the land which 
they occupied outside of the 40 acres? 

Mr. Cornish. Yer likely. I think that means to say that if they 
were in possession of more land than the 40 acres they are now con- 
fined to that. 

I have consumed a good deal of time on this subject; this is about 
all I have done since 1898, and if there is any further information that 
I can give I will be glad to do so. 

Senator Long. How many freedmen are there on the rolls of the 
Choctaw and Chickasaw nations ? 

Mr. Cornish. Between 10,000 and 11,000 on those two rolls; a lit- 
tle over 5,000 Chickasaws and a little less than 6,000 Choctaws. 

Senator Dubois. How manv Choctaw and Chickasaw Indians? 

I'lr. Cornish. Between 25,000 and 30,000 on both rolls. 

Senator McCumber. Have you filed a brief in this case? 

Mr. Cornish. I submitted my views at McAlester before the select 
committee, and they have been transcribed. 

Senator McCumber. You submitted an oral argument ? 

Mr. Cornish. Yes, sir; which was taken down and has been 
transcribed. 

Senator McCuiviber. This is simply a repetition of that, is it? 

Mr. Cornish. Yes, sir; but this is more in detail than the state- 
ments I made before the select committee. 

Senator McCumber. I can see, so far as I am individually con- 
cerned — without passing on the question — that this amendment is 
broad enough undoubtedly to admit to citizenship on the evidence 
which could be secured of everyone who had Indian blood or who 
could say they had Indian blood; they could probably all get on the 
rolls under it. So that would bring it right back to this question, 
whether or not under the customs of the tribe they would be entitled 
to become citizens under their customs or their laws; and if they were 
entitled I should not object to their all going on, even though it would 
discriminate to a great extent. We get right back after all to the 

^S. Doc._257, 59-2 6 



2 CHOCTAW AND CHICKASAW INDIANS. 

real question, not whether they have been guilty of laches, but whether 
or not they are entitled under the laws and customs to be regarded 
as citizens of that community. I presume you have something more 
definite, or at least as fully definite as this^ upon that subject. 

Mr. Cornish. This is really the statement I wish the committee 
to consider. As to that particular point, I have said that the tri- 
bunals of the Government of the United States, for the purpose of 
making up the citizenship rolls and for the ])urpose of dividing the prop- 
erty; that the limit of the Government's jurisdiction is the tribal 
rolls themselves, which were made by the tribes in pursuance of their 
customs and laws. There is no power anywhere to add a single 
name to any roll. The final tribal roll must be the tribal roll of the 
tribe; the final roll made by the Government must be the roll of the 
tribe, and children born to those persons since those rolls were made, 
and intermarried persons, less such persons as may be eliminated 
from the tribal rolls because placed thereon without authority of law. 

Senator McCumber. Suppose we did pass a law of that kind and 
shoidd find that that law was harsh; that it did exclude those who 
ought to have been in justice placed on the rolls, you would not object 
to our still allowing them to be placed on the rolls, provided we were 
satisfied that they were really entitled under the customs of the tribe 
to be placed there ? 

Mr. Cornish. Of course I could not take issue upon that question. 

1 am compelled to assume that Congress, whatever it does, is doing 
what it thinks is right, and if Congress should feel that those persons, 
or any other persons, are really entitled to go on those rolls and 
entitled to land, I could expect you to do it. 

Senator Brandegee. But of course it is your duty as an attorney 
to protest against it. 

Mr. Cornish. No, sir; it is not. I want to say a word as to that. 
Our instructions from the tribe have been not only to prevent the 
enrollment of those persons not entitled, but to give substantial assist- 
ance to those who are; to make the road easy; to make the proper 
construction of the law. We have agreed to a construction of all those 
laws which we think is just and correct. Now, our instructions from 
the beginning are not only to protest against those persons not entitled, 
but to devote our time and efforts and the means of the tribe to the 
assistance of those persons who are entitled. 

Senator Brandegee. But I understood jou to say before our sub- 
committee out there, time and again, whenever you got a chance, that 
you did not want any more people put on these rolls, but that the 
matter should be regarded as closed. 

Mr. Cornish. I said that as the existing law now stands the matter 
will be closed. 

Senator Brandegee. I say it is your duty now as their attorney to 
protest against any other persons being put on. 

Mr. Cornish. Yes, sir; to protest. But no injustice will be done 
to anybody; all persons will be on under the existing law, and the 
law will take its course. 

Senator Long. After ten years in trjang to perfect these rolls they 
feel that all persons who have any right to be on the rolls are there now. 

Mr. Cornish. Yes, sir; and a great many more. Gentlemen, I 
thank you for your attention. 



CHOCTAW AND CHICKASAW INDIANS. 83 

ADDITIONAL STATEMENT OF MR. WEBSTER BALLINGER. 

The Chairman. Mr. Ballinger, do you desire to reply ? 

Mr. Ballinger. I shall be very brief. I desire in the commence- 
ment of my remarks to refer to the decision of the Indian Office. 

Senator Sutherland. Is it the same letter that you read before ? 

Mr. Ballinger. Yes, sir. In the decision of the Commissioner of 
June 14^ 1906, denying the petition for the transfer of the name of 
Calvin Newberry et al. from the roll of Chickasaw f reedmen to the roll 
of citizens by blood of the Cliickasaw Nation, he held: 

It does not appear from the records of this Office that any application was made for the 
enrollment of the petitioners or any of them as citizens by blood of the Chickasaw 
Nation prior to December 25, 1902. 

The Commissioner of Indian Affairs, in bringing this case to the 
attention of the Secretary of the Interior in a communication which 
also included his recommendation that the decision of the Commis- 
sioner be affirmed, says: 

The Commissioner finds that the Department in its letter says that in view of the fact 
that the records of his Ofhce are, under the provisions of the act of Congress approved 
April 26, 1906 (.34 Stat. L., 137), conclusive as to these applications, and further search 
should be made of the records for the purpose of ascertaining if any application was 
made by the persons named in Mr. Lee's affidavit for citizenship in the Chickasaw 
Nation under the provisions of the act of June 10, 1896. The Commissioner reports 

* * * that there was filed with the Commission on September 9, 1896, a petition of 
Gallic Newberry, praying for admission to citizenshij) in the Chickasaw Nation. 

* * * * * -x- *■ 

He reports that the original petition in the case is not in the possession of his Office, 
and it is not believed to be probable that it is now in existence; but he does find. from 
the records of his Office that from the adverse decision rendered by the Commission on 
November 10, 1896, an appeal was taken to the United States court for the southern 
district of the Indian Tenitory. 

The Commissioner further says that notice of this appeal was furnished the Commis- 
sion * * * and it was directed that all the original papers be immediately for- 
warded to the court to be used and considered in the case of Callie Newberry et al. 
V. The Chickasaw Nation. 

* * * The Couunissioner says that Mr. Lee now seeks to invoke the aid of the 
records of the- United States court for the purpose of showing that such an application 
was made under the act of June 10, 1896. 

The Commissioner quotes from section 4 of the act of Congress approved April 26, 
1906, supra, as follows: " That no name shall be transferrexl from the approved freedmen 
or any other approved rolls of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole 
tribes, respectively, to the roll of citizens by blood, unless the records in charge of the 
Commissioner to the Five Civilized Tribes show that application for em-ollment 
as a citizen by blood was made within the time prescribed by law by or for the party 
seeking the transfer, and said records shall be conclusive evidence as to the fact of such 
application, unless it be shown by documentary evidence that the Commission to the 
Five Civilized Tribes actually received such application within the time prescribed 
by law," and says this provision of the act, in his opinion, prohibits the transfer of 
names of persons "from the approved rolls of Choctaw and Chickasaw freedmen to the 
rolls of citizens by blood of the Choctaw and Chickasaw nations, unless application 

* * * was made on or before December 24, 1902, * * * and that the copy of 
the affidavit of Callie Newberry of August 31, 1906, can not in any manner be con- 
strued as an application * * * for citizenship * * * of her seven children 

* * * but admitting * * * that this affidavit * * * is construed as an 
application submitted on behalf of these persons * * * he is of opinion that they 
would be bound by the decision of the Commission of November 10, 1896, denying the 
petition filed by Callie Newberry on September 10, 1896. 

Mr. Bixby holds that the petitions submitted on behalf of Choctaw and Chickasaw 
freedmen for admission to citizenship in the Choctaw and Chickasaw nations under the 
act of Congress approved June 10, 1896, and which were denied, can not, as held by the 
Department in its letter of May 25, 1906 (I. T. D. 9114, 1906) be construed as continuing 
applications as contemplated by section 4 of the act of Congress approved April 26, 
1906. 



84 CHOCTAW AND CHICKASAW INDIANS. 

The letter of the Department of date of May 25, 1906, herein cited 
by the Commissioner, and which is i sed by the Commissioner for the 
purpose of defeating the rights of all persons not defeated by section 
4 of the act of April 26, 1906, and which upsets all the decisions of the 
legal officers of the Department, as well as the decisions of the Attor- 
ney-General, was written by a Iv.natic, insane at the time he prepared 
the letter, later adji dged to be crazy by the supreme coi rt of the 
District of Columbia, and b}^ its decree incarcerated in St. Elizabeth's 
Insane Asylum. 

Senator Brandegee, Who is that communication signed by? 

Mr. Ballixger. It is signed by Mr. C. F. Larabee, Acting Commis- 
sioner of Indian AlFairs. 

Mr. Cornish. I think it would be worth the committee's while to 
get at a disposition of this matter. How do the papers in that case 
differ from the papers which were discovered in the Joe and Dillard 
Perry case? 

Mr. Ballinger. In the Joe and Dillard Perry case they had never 
been transmitted to a cov rt — the case had never been })efore a coi rt — 
but on the contrary had been acti ally in the possession of the Com- 
mission at all times. There is no q. estion in the world bi t that the 
Perry application, at the time of the certification of the record to the 
Department, was in the possession of the Commission, and was sup- 
pressed for the sole purpose of defeating their rights to enrollment as 
citizens by blood. 

Mr. Cornish. Do T i nderstand you now that the physical paper, 
which yo I say has the virt; e of an application, is now in the physical 
possession of the Commission? 

Mr. Ballinger. No; of record with the coiirt. 

Mr. Cornish. All the records of the United States court were sent 
to the Clioctaw and Cliickasaw citizenship court, and were, by order 
of the Department, turned over to the Five Civilized Tribes, and are 
now in their files. 

Mr. Ballinger. They were in all cases in which the Choctaw and 
Chickasaw citizenship court assumed jurisdiction, but that coi rt did 
not assume jvLrisdiction of either the Perry or the Newberry case. 

Mr. Cornish. Then why did you not go to the United States court 
and get a certified copy of this paper? 

Mr. Ballinger. The Commissioner sent to the court and got the 
original papers and a copy of the docket entries in this case in con- 
formity with departmental instructions, and transmitted them to the 
Department with the request that they be returned to him in order 
that they might be returned to the court. 

Mr. Cornish. That is the original paper in that Newberry case, 
which you saj has the virtue of an original application; that is the 
application. 

Mr. Ballinger. The application is on file with the court. 

Mr. Cornish. Now, why did you not go to the court and get a certi- 
fied copy of it and file it with the committee ? 

The Chairman. I think that why he does not do a thing is not 
proper. 

Senator Long. I think it is very proper that you bring it out 
beca^ se in a letter to the select committee under date of November 
24, 1906, Mr. Bixby says: 

Since the passage of this act no cases have been determined by this office wherein it 
was necessary to a decision in the case upon just what constitutes "documentary evi- 



CHOCTAW AND CHICKASAW INDIANS. 85 

dence," as used in section 4. but as illustrative of the character of the examination had 
in these cases there is attached hereto (marked •• Exhibit J") the examination had on 
May 28. 1906. in the matter of the application for the enrollment of Joshua. AVillie, and 
Frank Impson as citizens by blood of the Choctaw Xation. In this case a statement is 
made in the record or notations which appear upon the freed card upon which these 
children were listed when application was originally made for their enrollment before 
the Commission in 1899. 

Reference is also made to certain notations found on Choctaw roll card, field No. 
1829, upon which card appears the name of Morris Impson, the alleged father of these 
children. 

Then he goes on and says : 

I think I can safely state that ever\' facility has been afforded applicants enrolled as 
freedmen of the Choctaw and Chickasaw nations and who now desire to be enrolled as 
citizens by blood of one of said tribes to show by any evidence in the possession of this 
office whether a notation upon our field card, letters in the files of this office, or testi- 
mony or other evidence on fde in the case under consideration or other cases that an 
application was made or attempted to be made for their enrollment as citizens by 
blood y>rior to December 25, 1902, the time limited for the reception of such applica- 
tions by the act of July 1, 1902. 

Mr. Ballixger. My associate, Mr. Lee, calls my attention to the 
fact that his sworn statement as to precisely what the record contains 
is in the record, if you remember, of the hearing before the committee. 

Senator Long. Is it a certified copy of the record or the record 
itseir^ His aflidayit might not be considered documentary eyidence. 

Senator Brandegee. But Mr. Bixby himself or one of his em- 
ployees there, in the hearing that was had before us, I remember, 
testified to certain things that he had construed as being applications, 
and when that 

Senator Warner. But it is said in this extract that he held it w'as 
not a continuing application. 

Senator Brandegee. He gave instances of certain things that he 
decided to be documentary eyidence. 

Mr. Cornish. Yes; now, it won't do for Mr. Ballinger to say — — 

Mr. Ballinger. I mean to say that either in that paper right 
there or the flecision in the case^and I haye in my possession all the 
papers in the case — where it is stated that the papers were transmitted 
to the Connnission by the court and by the Commission certified to the 
DepartmcMit and that they were considered by the Department — that 
is, the Indian Office — and then returned. 

Mr. Cornish. A certified copy of the papers? 

Mr. Ballinger. The original papers. 

Mr. Cornish. There is some mistake about that. 

Senator Brandegee. Well, there is no use in disputing that until 
we get the papers. 

^Ir. Ballinger. By permission of the committee, I will print the 
full communication of tlie Commissioner of Indian Affairs to the 
Secretary, in which he sets out the decision of the Commissioner and 
recommends that the decision of the Commissioner be affirmed, and 
the decision of the Secretary affirming it, to appear at the conclusion 
of my remarks. I desire, if I can, to make yery clear to whom this 
grant was made. It has been contended here that it was made to 
the Choctaw Nation and that the Choctaw Nation could control its own 
citizenship; that it could put on the rolls such persons as it saw fit, 
and tliat by so doing confer upon tliem property rights; that it could 
strike from those rolls the names of such persons as it saw^ fit, and 
likewise depriye them of property rights. In short, that the nation 



86 CHOCTAW AND CHICKASAW INDIANS. 

alone could determine its membership, and thus determine the 
property rights of all persons under the treaty of 1830. 

Let us analyze the language used in the treaty and made the 
operative words of grant in the patent. The grant was: 

To the Choctaw Nation, in fee simple to them and their descendants, to inure to 
them while they shall exist as a nation and live on it. 

The grant was not limited exclusively to the nation as then existing, 
but was exclusively limited to the then existing communit}^ of Choc- 
taw Indians and to their descendants in fee simple, to inure to them. 
To whom did it inure? To them, the descendants of those persons 
then comprising the community of Choctaw Indians, which com- 
munity constituted the nation. What does the word ''inure" mean, 
and for what purpose is it here employed? It means: l,"to pass 
into use; 2, to take or have effect; 3, to serve to the use or benefit 
of." (Bouvier and Universal Dictionary.) 

And it was employed for the jjurpose of passing the communal 
estate to the descendants of the then community of Choctaw Indians 
to serve to the use or benefit of them. 

Now, let us rewrite this section and insert in lieu of the word 
"inure" these words of definition. 

The grant would then read : 

To the Choctaw Nation, in fee simple to them and their descendants, to pass into 
use for them while they shall exist as a nation and live on it. 

Or 

To the Choctaw Nation, in fee simple to them and their descendants, to take or have 
effect as to them while they shall exist as a nation and live on it. 

Or 

To the Choctaw Nation, in fee simple to them and their descendants, to serve to the 
use or benefit of them while they shall exist as a nation and live on it. 

The word "descendant" meaning: 

A person who is descended from another; anyone who proceeds from the body of 
another, however remotely. 

And the word "inure" meaning: 1 "to take or have effect as to 
them; 2, to pass into use for them; 3, to serve to the use or benefit 
of them." 

We thus determine beyond question the true meaning and intent 
of this language. 

Again, the word "descendant" is not employed in legal phrase- 
ology as a technical word used in connection with governments for 
the purpose of defining their natural acts and powers. 

Nowhere in legal phraseology is the word "descendant" one of the 
technical legal words einplo3^ed in a grant to vest in the now exist- 
ing individual absolute indefensible title. The accepted universal 
technical legal words emplo^'ed being: "heirs," "successors," and 
"assigns." 

The word "descendant" not being one of the accepted technical 
legal words employed in vesting title in fee simple in a now existing 
person, it must be construed in accordance with its true meaning and 
given the fidl import of that meaning. 

Thus the word "descendant" here is used for the sole purpose of 
fixing the rights in a communal estate of person* yet unborn whose 
rights in such estate attach simultaneously with their birth and 
become vested. 



CHOCTAW AND CHICKASAW INDIANS. 87 

''"\Miere a treaty admits of two constructions, one restrictive as to 
the rifjhts that may be claimed under it and the other Hberal, the 
latter is to be preferred (Shanks v. Dupont, 3 Pet., 242). Such is the 
settled rule of this court/ ' so said Mr. Justice Swayne in deliyering the 
opinion of the court in the case of Hauenstein v. Lynham, 100 U. S., 
487, and citinoj the aboye-referred-to decision by ]\Ir. Justice Story. 

This being the settled rule of the Supreme Court of the United 
States, certainly a reasonably liberal construction of the word ''de- 
scendant' ' woidd include not only the children but the grandchildren 
and the great grandchildren, and so on to the remotest degree, eyen 
though the more remote descendants were not possessed of as great a 
quant om of Indian blood as the ancestor. 

>sor could it have been the intention of the contracting parties that 
only legitimate issue, as technically defined and recognized in ciyi- 
lized communities, should take under the grant. 

The people comprising the Choctaw Nation in 1830 were living in a 
state of nature. The mere living together of a man and woman con- 
stituted a valid marriage. The abandonment of the wife by the hus- 
band constituted a valid divorce, and the issue of such unions were 
possessed of all their natural rights. (Robertson's History of 
America, Book 4; Wall r. Williamson, 11 Alabama, 839; Johnson v. 
Johnson, Administrator, 9 Mo. Reports, p. 88.) 

The rule prevailing at the time the treaty was signed must continue 
to the time of the distribution of the property. You can not have one 
rule for one period of time and another for another period of time. 
You must construe the treaty of 1830 according to the intention and 
understanding of the contracting parties at the time it was negotiated. 
The rule prevailing at the time tlie treaty was negotiated must con- 
tinue to tlie time of the distribution of the property, and you can not 
turn aside into the genealogy of individuals or be turned aside by the 
peculiarities of Indian laws and customs. 

To permit the Indian tribe to determine who were its members and 
who were entitled to participate in the distribution of the tribal prop- 
erty would be to conmiit individual rights to the incompetent and cor- 
rupt liands of those who have a direct pecuniary interest in the 
decision. 

As the tril)al lands in Indian Territory were ceded to the Choctaw 
'Nation in consideration of the cession by tlie Choctaws of lands east of 
the Mississippi, not even Congress could divest any persons entitled to 
share in the tribal lands under and by virtue of the treaty of 1830. In 
the case of Jones v. Meehan, 175 U. S., p. 1, Mr. Justice Gray, in 
delivering the opinion of the court, said: 

The construction of treaties is the peculiar province of the judiciary, and except in 
cases purely political Consiress has no constitutional power to settle the rights under a 
treaty or to' affect titles already granted by the treaty itself. (Wilson v. Wall, 6 ^^'all., 
83, 89, 18 L ed., 727-729; Reichart v. Felps, G Wall.. 160, 18 L ed., 849; Smith r. 
Stephens. 10 Wall., 321, 327. 19iL ed., 933. 935; Holden v. Joy, 17 Wall., 211, 247, 21 
L ed., 523, 535.) 

In the case of Wilson v. Wall (6 Wall., 83), hereinabove cited, the 
power of Congress to affect the property rights and titles of Choctaw 
Indians secured to them by the treaty of 1830, the identical treaty 
under which the petitioners herein claim property rights, is deter- 
mined. In passing upon the effect of an act of Congress enacted for 
the purpose of ascertaining the names of parties entitled to patents 



88 CHOCTAW AND CHICKASAW INDIANS. 

under the treaty of 1830 and the quantit^y of land to which each was 
entitled, the court says: 

It (the act of Congrees) can not affect titles before given by the Government, nor 
does it pretend to do so. Congress has no constitutional power to settle the rights 
under treaties, except in cases purely political. * * * The legislature may pre- 
scribe to the Executive how any mere administrative act shall be performed, and such 
was the only aim and purpose of this act. 

Now let us see whether or not that was the interpretation of the 
treaty of 1830, as construed by the parties themselves as late as 1866, 
and whether or not these nations were vested vdih power by the 
treaty of 1830 to adopt people into the tribe with full communal 
property rights. 

Ai'ticle 26 of the treaty of 1866 provides: 

The right here given to the Choctaws and the Chickasaws, respectively, shall extend 
to all persons who have become citizens by adoption, or intermarried with either of 
said nations, or who may hereafter become such. 

Ai'ticle 38 provides — and this is an important article: 

Every white person who, having married a Choctaw or Chickasaw and resides in the 
said Choctaw or Chickasaw nation, or who has been adopted by the legislative author- 
ities, is to be deemed a member of said nation, and shall be su'liject to the laws of the 
Choctaw and Chickasaw nations according to his domocile, and to prosecution and trial 
before their tril)unal, and to punishment according to their laws, in all respects as 
though he was a native Choctaw or Chickasaw. 

Senator McCumber. That excludes color by including white? 

Mr. Bai.linger. .\j-ticle 3 provided for the adoption, after the 
nation had adopted laws, rules, and regulations, of those persons then 
living and formerly held in servitude, and their descendants. 

Senator McCumber. Adoption, but not with full rights in the 
nation. 

JVIr. Ballixger. All the rights, privileges, and innminities of any 
other citizen, except the right to take property equally with the others, 
and gave them 40 acres of land. 

Senator McCumber. That would be a complete right of a citizen, 
would it not? 

Mr. Ballixger. Yes, sir; with a limited property right. Article 
26 conferred all rights given by an article of the treaty upon all 
persons who might become citizens of the tribes by adoption and 
intermarriage, while article 38 conferred equal rights witli Choctaws 
and Chickasaws upon white persons intermarrying or adopted into 
the tribes. Until this treaty of 1866 was ratified, however, no person 
whomsoever theretofore adopted by the tribes or who had inter- 
married into the tribes had secured by his adoption or intermarriage 
a right to participate in the communal lands or other property of the 
tribes, and neither of the parties to the contract of 1830 believed 
that the tribes could confer those rights, as is clearly indicated by 
these articles. 

Then, again, article 45 provides: 

All the rights, privileges, and immunities heretofore possessed by said nations, or 
individuals thereof, or to which they were entitled vmder the treaties and legislation 
heretofore made and had in connection with them 

[-What legislation? Congressional legislation. 

shall be, and are hereby, declared to be in full force, so far as they are consistent with 
the provisions of this treaty. 



CHOCTAW AND CHICKASAW INDIANS. 89 

The ri^ihts conferred by the treaty of 1830 upon the descendants 
of the then Choctaws are reaffirmed by this treaty article. 

But let us see what the powers of the Choctaw and Chickasaw 
nations or the powers of any Indian government are to divest a 
person of a right given such person under a treaty. 

Senator McCumber. You claim that the Indian nation had no 
power to divest descendants of any kind of a right — unborn descend- 
ants? 

Mr. Ballinger. No, sir; it had not as long as the property was 
held by the communitv under the unchanged terms of the treatv of 
1830. 

Senator McCumber. vSuppose an Indian tribe had ceased to exist 
as a tribe and had become dispersed or scattered over the country 
and ceased to hold its tribal property, would not the land under this 
grant revert to the Government? 

Mr. Ballinger. Undoubtedly it would. 

Senator McCumber. Then they could by that act deprive the 
descendant of a right granted under the act? 

Ml-. Ballinger. In that case the nation and its people would have 
by tlieir own act forfeited their jiroj^erty, for the treaty of 1830 pro- 
vided that the land sliould revert to the Government in the event 
the nati()n ceased to exist as a nation and live on it. The object 
sought by tlie treaty was this: It was to place that title in some 
name that would live and pass on down through generations in 
order that the children and their children and their children might 
take property rights as they were born; that was the object. 

vSenator ^IcCuMBER. The only reason I asked the c^uestion was 
probably to demonstrate what was in my mhid — that if the tribe 
could by its own act dissolve itself as a tribe, entirely destroy its tribal 
relations, then certainly it nuist also convey the power to restrict its 
citizenship. If it can destroy its citizenshij), it would certainly have 
the lesser j)ower to restrict its citizenship and determine who should 
be meml)ers and wlio should not. 

Mr. Ballinger. But it would be for the United States Govern- 
ment and not the tribe to determine and declare the forfeiture. Let 
us suppose one case of restriction and regulation of membership by 
the tril)e, if tliat be true, and tliose were the powers of that nation; 
let us suppose that the nation ad()j)ted an equal number of white 
peoj)le into the nation: that portion of the white people thus adopted 
securetl control of the political alfairs of the nation, they could then, 
under tluit theory, divest all those of Indian blood of tiieir citizenship 
and the grant would inure to the white people. 

Senator McCumber. No; that would not follow. They could 
enact a law by which certain others — marriages outside of their tribe, 
for instance — should not become citizens. They could prevent this 
from occurring any more by making restrictive rules, but they could 
not depiive one existing at that time of the right. 

Mr. Ballinger. I have a clear-cut blanket decision on that point. 
It is the case of the New York Indians where the grant was made to 
the confederated tribes. They attempted to limit descent to the 
mother, and })rovide(l that wherever a male member of the tribe 
married a white woman, outside of the tribe, that the children of such 
union should take the status of the white woman and not become 
members. That was a law of the nation. That case was recently 



90 CHOCTAW AND CHICKASAW INDIANS. 

adjudicated by the Court of Claims, having been referred there by 
act of Congress, and the Court of Claims, when it came to render its 
opinion in that case, decided all these questions and brushed them 
aside as though they were of no consequence, and issued a decree 
directing the distribution of tribal property to all persons who were 
parties to the treaty or whose ancestors were, without regard to restric- 
tive tribal laws or questions of blood and citizenship. 

Senator Warner. You quote that decision, do you not ^ 

Mr. Ballinger. No, sir; I do not. I tried to get the decision 
last night, but I was unable to, and with permission I will insert it in 
my remarks. 

Senator Clark, of Wyoming. How long ago was that made ? 

]\ir. Ballinger. That decision was rendered, I think, on the 15th 
day of May, 1905. 

Senator Brandegee. Suppose you get the titles of those cases and 
file them. 

Mr. Ballinger. Very well, I will insert the decision. I find this 
in a Cherokee case, where the Cherokees adopted under treaty with 
the Government the Delaware Indians, and I fmd that the Cherokee 
Nation attempted to exclude the Delaware Indians from participa- 
tion in their tribal property. 

Senator Clark, of Wyoming. Did not that case grow up on the 
terms of a contract whereby the Delawares paid a certain amount of 
money for what land they should occupy and for citizenship in the 
tribes ? 

Mr. Ballinger. Yes, sir; and under the terms of the treaty pro- 
viding for it, and the Cherokee Nation sought to divest the Dela- 
wares of their property rights. 

Senator Clark, of Wyoming. Did not that arise on a contract 
between the two peoples — ^the Delawares and the Cherokees — that 
is the question I asked. 

Mr. Ballinger. Yes, sir; I think it did. 

Senator Brandegee. The syllabus will show. 

Mr. Ballinger. Yes, sir; I will read the syllabus. It is on page 
199, volume 155, United States Supreme Court Reports. The Cher- 
okee Nation v. Journeycake. 

Senator Long. It construed the agreement or treaty? 

Senator Clark, of Wyoming. There was a treaty made and those 
two tribes entered into a definite contract. 

Mr. Ballinger. The right of the contract turning upon the right 
of a native Cherokee under the treaty, it is pertinent to inquire what 
the rights of the native Cherokees were under the treaty and as to 
whether or not the Cherokee Nation could divest a native Cherokee. 

Now, the distribution of the property was about to be made under 
an agreement with the Government ; it has only been a few years ago 
that this decision was rendered. The court says, on page 216: 

It is also worthy of note that when in 1883 a bill passed the national council for the 
payment to the native Cherokees alone of a certain sum of money received as rental 
from the Cherokee Strip Live Stock Association, which, so far as appears, was the fu'st 
manifestation of a claim of a difference between the native Cherokees and the regis- 
tered Delawares as to the extent of their interests in the lands or the proceeds thereof, 
it was vetoed by D. W. Bushyhead, the then principal chief of the Cherokee Nation, 
on the ground that such action was in violation of the agreement of 1867. It is true the 
bill was passed over his veto. While the veto message is too long to quote in full, 
these extracts sufficiently disclose the reasons upon which it is based: 



CHOCTAW AND CHICKASAW INDIANS. 91 

■ Third. The "patent " was made to the " Cherokee Nation " in 1838, and the Cherokee 
Nation was then composed of citizens by right of blood, and so continued to be until 
the exigencies of the late war arose, when, in 1866, it became necessary to make a new 
treaty with the United States Government. By this treaty, made by and with this 
nation, other classes of persons were provided to be vested with all the rights of "native 
Cherokees" upon specified conditions. These conditions have been fulfilled as 
regards the acknowledged colored citizens of this nation and the so-called Delaware 
and Shawnee citizens. I refer you to article ninth of said treaty in regard to colored 
citizens, and article fifteenth, first clause, as regards Indians provided to be settled east 
of 96°. The language is, they shall have all the rights of native Cherokees "and " they 
shall be incorporated into and ever after remain a part of the Cherokee Nation on equal 
terms in every respect with native Cherokees. 

Sixth. If the lands of the nation were and are the common property of citizens, then 
no citizen can be deprived of his or her right and interest in the property without doing 
an injustice and without a violation of the constitution which we are equally bouncl to 
observe and defend. While the lands remain common property, all citizens have an 
equal right to the use of it. When any of the land is sold under provisions of treaty, 
all citizens have an equal right to the proceeds of their joint property, whether divided 
per capita or invested. 

" Senators, such is the treaty and such is the constitution. I have referred you to 
themand stated their evident meaning in the premises " to thebestof myability," as is 
my duty. To the classes of citizens this bill would exclude, attach "all the rights and 
privileges of citizenship according to the Constitution." To three of these classes 
attach also the rights of "native Cherokees," according to treaty." 

Further comment on this case is unnecessary. We see no error in the conclusions 
of the Court of Claims, and its decree is affirmed. 

Counsel for the Choctaw and Chick;isaw nations seems to concur in 
our construction of the treaty of 1830, viz, that under that treaty the 
word "descendant" was used for the sole purpose of fixing the rights 
in a communj 1 estate of persons yet unborn whose rights in such 
estate attach simultaneously with their birth and become vested. 

He also admits that the Chickt saws were adopted into the Choctaw 
Nation under and by virtue of the treaty of 1837, and that the prop- 
erty right acquired by the Chickasaws was 'Ho be held on the same 
terms that the Choctaws now hold it." Wliat were the terms upon 
wliich the Choctaws held it? The terms of the treaty of 1830 which 
ceded the lands — 

to the Choctaw Nation, in fee simple, to them and their descendants, to inure to them 
while they shall exist as a nation and live on it. 

Mark you, the grant here was not to the Choctaw Nation as then 
existing, or as it existed at any future time, but wss exclusively limited 
to the then existing coimnunity of Choctaw Indians and to "their 
descendants," in fee simple, to inure to them. Under this grant, the 
terms of which were embodied in the patent, and the patent has never 
been changed, no person could acquire property rights in the Choctaw 
Nation unless he w-:,s a recognized member of the comnmnity which 
constituted the Choctaw Nation at the date of the negotitition of the 
treaty of 1830, or unless the ancestors of such person were recognized 
members of that community. 

TREATY OF 1855. 

The treaty of 1855 has been referred to in this discussion for the 
sole purpose of confusing the real issues. It does not in any way 
imp; ir the rights given persons by the tresity of 1830 granting the 
lands to the Choctaw Nation. Nor has any court or any legd officer 
of the Government, or anyone else possessed of legal knowledge, except 
the attorney for the Choctaw Nation, ever contended that this treaty 



92 CHOCTAW AND CHICKASAW INDIANS. 

changed the terms of the grant made under the treaty of 1830. No 
new patent has ever been issued and in the patent are the identical 
words contained in the treaty of 1830: 

The United States, under a grant specially to be made by the President of the United 
States, shall cause to be conveyed to the Choctw Nation a tract of country west of the 
Mississippi River, in fee simple, to them and their "descendants," to inure to them 
while they shall exist as a nation and live on it. 

The object sought to be accomplished by the treaty of 1855 was set 
out fully in the preamble, as follows : 

Wliereas the political connection heretofore existing between the Choctaw and the 
Chickasaw tribes of Indians has given rise to unhappy and injurious dissensions and 
controversies among them which render necessary a readjustment of their relations to 
each other and to the United States; and 

Whereas the United States desire that the Choctaw Indians shall relinquish all claim 
to any territory west of the one hundredth degree of west longitude, and also to make 
provision for the permanent settlement within the Choctaw country of the Wichita 
and certain other tribes or bands of Indians, for which purpose the Choctaws and Chick- 
asaws are willing to lease, on reasonable terms, to the United States that portion of 
their common territory which is west of the ninety-eighth degree of west longitude; and 

Wliereas the Choctaws contend, that by a just and fair construction of the treaty of 
Septemlier 27, 1830, they are of right entitled to the net proceeds of the lands ceded 
by them to the United States under said treaty, and have proposed that the question 
of their right to same, together with the whole subject-matter of their unsettled claims, 
whether national or individual against the United States arising under the various 
provisions of said treaty, shall be referred to the Senate of the United States for final 
adjudication and adjustment; and whereas it is necessary for the simplification and 
better understanding of the relations between the United States and the Choctaw 
Indians that all their subsisting treaty stipulations be embodied in one comprehensive 
instrument: 

Now, therefore, the United States of America, by their Commissioner, George W. 
Manypenny the Choctaws, by their commissioners, Peter P. Pitchlynn, Israel Folsom, 
Samuel Garland, and Dickson W. Lewis, and the Chickasaws, by their commissioners, 
Edmund Pickens and Sampson Folsom do hereby agree and stipulate as follows, viz. 

The above preamble recites the precise objects sought to be attained, 
and states that as the Choctaw and Chickasaw people were having 
serious contentions as to tlieir separate national pohtical rights, the 
distribution of the funds derived from the sale of the lands formerly 
held and occupied by the Choctaws and situated east of the Missis- 
sippi River, and as the United States Government desired to locate 
certain tribes or bands of Indians, including the Wichitas, on the 
tribal lands lying west of the one hundredth degree of west longitude, 
and commonly known as the Lease District, and to induce the Choc- 
taws to relinquish all right thereto and to secure a release from the 
Choctaws and Chickasaws of that portion of their common territory 
west of the ninety-eighth degree of west longitude, ''this treaty is 
negotiated." 

Article 1 of the treaty provides as follows: 

Article 1. The following shall constitute and remain the boundaries of the Choctaw 
and Chickasaw country, viz: * * * 

And pursuant to an act of Congress, approved May 28, 1830, the United States do 
hereby forever secure and guarantee the lands embraced within the said limits to the 
members of the Choctaw and Chickasaw tril^es, their heirs and successors, to be held 
in common, so that each and every member of either tribe shall have an equal, undi- 
vided interest in the whole. Provided, however, that no part thereof shall ever be 
sold without the consent of both tribes, and that said land shall revert to the United 
States if said Indians and their heirs become extinct or abandon the same. 

The term "heirs" as applied to the communal estate of the Choc- 
taws and Chickasaws is a misnomer. 

Bear in mind that the individual members of the Choctaw and 
Chickasaw nations had merely a life interest in the usufruct of the 



CHOCTAW AND CHICKASAW INDIANS. 93 

land conveyed by the patent of 1842, whioii patent was issued under 
and by virtue of the treat}' of 1830, and that the fee never became 
absolute in the individual, but remained in the communities or nations 
so long as the}^ should exist as nations, and the persons comprising 
the nations should continue to live on the land. Ihe Indians' estate 
was therefore a communal estate. The fee was lodged in the Choctaw 
Nation for the benefit of the descendants of those persons comprising 
the Choctaw Nation, subject, however, to the condition that if the 
nation ceased to exist as a nation and its members ceased to occupy 
and live on the land the land should revert to the United States. 

Therefore the word "heirs" could have no legal significance, as the 
nations then had no laws governing "descent and distribution," and 
as no definition of the v>'ord '"heirs" can be found in the treaty the 
word can only be construed luider the common law. The American 
and Enghsh Encyclopedia of Law, in defining the word "heir," says: 

At common law an heir is he who is born or begotten in lawful wedlock and upon 
whom the law casts an estate in lands, tenements, and hereditaments immediately 
upon the death of the ancestor. . : ■« >' ::. ^^.Za^j 

Could the death of an ancestor "cast an estate" in communal lands 
upon his heirs, then members of said nations, who acquired full right 
to participate in the tribal property by birth;! As the ancestor 
acquired only a life interest in the usufruct of the land, and as that 
right terminated with his demise, he never had an interest in the 
connnunal lands possible of being transmitted to liis heirs. He 
enjoyed the fruits of his birthright during his life and his rights in the 
communal lands terminated instantaneously with liis demise and 
passed back to the community. In the case of Brown v. Bclmarde 
(3 Kans., 41 ) , the court defines the right of the individual member both 
before and after the vesting in Mm of an individual title. The court 
said: 

Prior to the treaty of 1825 the Kansas Nation of Indians had the Indian title to the 
land in controversy, i. e., the right to use, occupy, and enjoy. This title was by the 
sixth article vested in Lavonture. His title was no greater than that of the nation had 
been. The nation's title was transferred to and invested in him individually. After 
the boundaries were ascertained in the manner contemplated in the treaty, he was the 
sole owner of section 9 to the extent of the Indian title. His interest did not 
amount to an estate of inheritance, but was a mere life interest in the usufruct. There 
are no words in the treaty which, upon any known rule of interpretation, would create 
an estate of inheritance. Before the treaty the United States held the ultimate title 
with the right of undisturbed occupancy and perpetual possession in the Indian 
nation "so long as it should remain a nation. Had the nation become extinct without 
a treaty, the lands would have become the property of the United States, disencum- 
bered of Indian title. So, after the treaty Lavonture, having but a life estate to the 
extent of the Indian title in section 9, should he die with or without issue the 
whole title to that section would vest in the United States." 

As the word "heirs" as used, when construed under the common 
law, can have no legal meaning, we must naturally look to the sub- 
stance of the treaty to ascertain, if possible, the intention of the con- 
tracting parties, and to give to it that construction the parties thereto 
intended it should have. 

Article 7 of said treaty guarantees to the members of said nation — 

The unrestricted right of self-government and full jurisdiction over persons and 
property within their respective limits; excepting, however, all persons or members 
who are not by birth, adoption, or otherwise citizens, or members of either the Choctaw 
or Chickasaw tribe; and all persons not being citizens or members of either tribe shall 
be considered intruders and be removed from the same by the United States agent. 



94 < IIOCTAW AND CHICKASAW INDIANS. 

Citizenship in said nations sprang from, i. c, (1) birth and (2) adop- 
tion as declared by this article. The right to participate in tribal prop- 
erty, lands, moneys, or otherwise, and to all priyileges and immunities 
exercised or enjoyed by any other member of said nations or tribes, 
attached to the indiyidual immediately on his birth, which was 
simultaneous with liis citizenship in said nations. 

In the light of article 7, hereinabove quoted, is it possible that the 
contracting parties intended to use the word '4ieirs" in the legal or 
ordinary acceptation of the term? We insist that they did not, and 
that the attempt here made by counsel for the nations to so construe 
renders the word utterly meaningless. The term "heirs "could haye 
legal mcanmg t)nly when used in connection with "lands, tenements, 
and hereditaments," which by operation of law descend on the death 
of the person legallj' seized in fee to such persons as are by law declared 
to be his heirs. No individual citizen of said tribes was seized in fee 
of tribal lands; therefore, the word "heirs, "as herein used, is devoid 
of legal meaning or significance. 

In the case of McGuire v. Moore (108 Mo., 267), the court said, in 
construing a will : 

It is proper where the face of the whole will, or of the particular clauses, relating to a 
certain subject warrant, and justice and reason require it, that the word ' ' heirs " may be 
construed as " children " or"issue," "grandchildren" or "descendants." (Waddell v. 
Waddell, 99 Mo., 345; Chew v. Keller, 100 Mo., 369.) 

The court further said : 

Expounding the will in this way is certainly in accord with the intent of the testator, 
as explained by himself, and this expounding results in saying that the word "heirs" 
must mean children of the former or of the then present husband. 

Following the decision of the court hereinabove cited, counsel for 
petitioners insist that the word " heirs" shoi Id be construed as though 
it were "descendants," as i sed in the treaty of 1830, as such a construc- 
tion only will give to it any legal significance and at the same time 
carry out the intention of the contracting parties. 

A descendant as defined by the Encyclopedia of Law and Proce- 
dure, volume 13, page 1047, is — 

One who descends, as offspring, however remotely; correlative to ancestor or an 
ascendant; one who has issued from an individual, including children, grandchildren, 
and their children to the remotest degree. 

In Van Buren v. Dash (30 N. Y., 393), per Denio, C. J., the court 
defines ' 'descendant : " 

Thus we speak of the descendants of Abraham, of AVilliam the Conqueror, of George 
the Third, and of the first and second President Adams, of Jefferson, and Alexander 
Hamilton, while we say of Queen Elizal)eth, of William of Orange, of Washington, and 
Madison, that they left no descendants, or, in the words of tlie statute, tirat they, 
respectively, died, leaving no child or other descendant. These are common forms 
of speech, and the meaning is perfectly definite, and it is such as I have mentioned. 
The word is invariably employed in that sense in books of history, in memoirs, in 
biographies, in works of genealogy, and in most every book which treats of men and 
their affairs. 

Following the established meaning of the word ''descendant" as it 
has come down to vs from time immemorial throvgh decisions of the 
highest coi rts of England and this country and as defined by all 
authorities, the Assistant Attorney-General of the United States for 
the Department of the Interior, in the case of Joe and Dillard Perry, 
under date of February 21, 1905 (see opinions Attorney-General, 



CHOCTAW AND CHICKASAW INDIANS. 95 

1905), in passing upon a case involving rights similar to the rights 
of your petitioners, thus defines it : 

"Descendants," as pointed out in the case of James W. Shirley, is a term of wider 
significance than '"heirs" or "legitimate issue." and includes those springing fi-om an 
ancestor, whether legitimate issue or not. 

CITIZENSHIP A.S DEFINED BY THE ASSISTANT ATTORNEY-GENERAL OF 

THE UNITED STATES. 

The word "heirs," as used in the treaty of 1855, does not and can not 
affect the rights of your petitioners to full citizenship in said nations. 
Certainly the child of a recognized member of either of said tribes 
born in lawfi 1 wedlock, according to the laws, i sages, and customs of 
said tribes prevailing at the date of the treaty of 1830, and born in the 
nation, having continued residence therein and owing his allegiance 
thereto, is a citizen of the nation. He derived his allegiance of birth 
by succession to the allegiance of the parent. His rights were clearly 
defined in the case of Mary Elizabeth Martin, decided by the Assistant 
Attorney-General for the Department of the Interior and approved 
by the Secretary on March 24, 1905. In said ojunion the Assistant 
Attorney-General says : 

Allegiance of birth is obtained by succession to the allegiance of the parent. 
This is the fundamental and universal law of all organized societies or States and 
essential to their continued existence as such. * * * 

In no State, so far as I am aware, has it ever been held that the off- 
spring of a citizen is a born stranger to the parents' allegiance, outcast 
from the parents' civil state, citizen of no other, merely because the 
parent was l)orn to, and for some part of its life owed, a foreign allegi- 
ance. It is not the parents' race or l^lood that gives citizenship to the 
child, but the parents' status of citizenship at tlie child's birth. 

If the status of an adopted citizen, having no Indian blood and pre- 
viously owing his allegiance to a foreign government, deriving his 
right to citizenship solely by adoption, entitles his child to the father's 
tribal status, how can it be denied that the child of a citizen by blood 
of the Choctaw Nation, always resident therein and having owed his 
allegiance to no other government, did not take his status of citizen- 
ship in said nation at the time of his birth and byj'eason of his father's 
blood and status as a member of said nation. 

INTENTION OF CONTRACTING PARTIES TO TREATY OF 1855. 

When we consider the treaty of 1855 m its entirety, we are irresist- 
ably impelled to the conclusion that the contracting parties intended to 
use the word ' ' descendants ' ' instead of the word ' ' heirs . ' ' The second 
paragraph of article one unqualifiedh' secures to the members of the said 
nations all the guarantees contained in the treaty of 1830 relative to 
the lands conveyed said nation under the latter treaty. The treaty 
of 1830 was to ''the Choctaw Nation and their descendants." So 
also article seven defines "citizens or members" of said nations to be 
persons resident within said nations who derived or acquired a tribal 
status by reason of "birth, adoption, or otherwise." This would 
seem to be conclusive as to the intention of the contracting parties to 
adhere strictl}^ to the terms of the treaty of 1830 and the patent issued 
thereunder. The treatv of 1855 was not negotiated with a view to 



96 CHOCTAW AND CHICKASAW INDIANS. 

changing or altering the terms of the original grant, but to make 
them more secure to the people of the Chickasaw Nation in common 
with the people of the Choctaw Nation under the grant. 

Following the thus established meaning of the word ''descendant" 
as it was understood by the contracting parties to the treaty of 1830, 
when the Choctaws were living in a state of nature, Congress in enact- 
ing laws and ratifying agreements for the dissolution of the tribal gov- 
ernment and the allotment of the lands of the Indians in severalty, has 
used the identical word used in the treat}^ of 1830 — " descendants." 
The word appears in the act approved June 7, 1897, which act con- 
strued and defined the words "Rolls of citizenship" used in the act 
approved June 10, 1806. So also the word " descendants" is used in 
the act approved Juno 28, 1898, under which these people were enrolled, 
and in subsequent acts. 

No court in the land, and no judicial officer of the Government, and 
no other individual, except the attorney for the Choctaw Nation, has 
ever even advanced the idea that the treaty of 1855 fixed the rights of 
any person to participate in the tribal lands of the Choctaw and Chick- 
asaw nations, oi' in the remotest degree interfered with or affected 
rights conferred by the treaty of 1830. 

Senator McCumber. Putting to joii an extreme case, do you hold 
that if an Indian of this tribe — Choctaws or Chickasaws — should 
marry a married Indian — say he has a family — should marry there 
and go over to Mexico and live there two or tln"ee years, and have 
children by a Mexican woman, would those children be entitled to 
rights in the tribe? Of course that is an extreme case. 

Mr. Ballinger. I will answer your question, and answer it frankly. 
I do not believe that when they leave their tribal community and go 
elsewhere that their rights continue. 

Senator McCumber. No; that is not it. Suppose he goes over 
there, but does not intend to desert his tribe, lives there a while and 
has children and comes back mto his tribe and lives there recognized 
as a member, would those children of a Mexican mother, in a foreign 
country, be members of the tribe ? 

Mr. Ballinger. If he returned, the citizenship of the children 
would be his citizenship, and his citizenship being that of the Chicka- 
saw, their citizenship would be that of the Chickasaw, and undoubtedly, 
in my opinion, the rights would be fixed as such. 

Senator McCumber. Suppose he did not bring his children with 
him at all, but returned himself, would the children become citizens? 

Mr. Ballinger. Such a condition as that is impossible in this case, 
because the law provides that they must return, and that they must be 
residents when they were examined, and when these rolls were made in 
1898. 

Senator McCumber. That is the question of putting them on the 
rolls, but you are to put citizens only on those rolls. The question is 
whether those would be citizens and entitled to go on the rolls. 

Mr. Ballinger. If they did not return they could not go on, because 
the law expressly excludes them. 

Senator McCumber. Suppose they came back and made applica- 
tion? 

Mr. Ballinger. If tliej^ returned — 

Senator McCumber. Now, the children returned — perhaps it is not 
proper to use that expression — but suppose the father returned and 
brought back his illegitimate children ? L,.,^:I.i^ is: ^«.z.£:;HS^ 



CHOCTAW AND CHICKASAW INDIANS. 97 

^Ir. Ballinger. If he abandoned his citizenship m the nation aiid 
went off to Japan or somewhere else and there acquired another 
citizenship 

Senator McCumber. That is not the proposition that I make. I 
say that he does not abandon his citizenship. 

^Ir. Ballinger. Then their citizenship is his, and that is fixed, 
and they would be members of that tribe. 

Senator McCumber. Now, just one step further. He is declared 
by the laws of the United States to be a citizen of the United States 
Would the children thereby beconie citizens of the United States, 
and if he brought back this woman, she of course would not be his 
wife if he was married, but suppose he was not, and he brought back 
this other woman, would she thereby become a citizen of the United 
States? 

Mr. Ballinger. She would be a citizen of the United States with 
a right to take in the tribal property. 

Senator McCumber. Yes; a citizen of the United States because 
all the members of the tribe are declared to be citizens of the United 
States. 

Mr. Ballinger. In the first place, in order to take under these 
laws she must have, since a recent date, married in conformity with 
tribal laws. If she did not marry in conformity with the tribal laws 
she would be barred under the holding of the Department. But in 
iiiy judgment if she returned with him to the nation and lived in 
the United States she would be entitled, providing the question of 
marriage is settled. Her children certainly were, and I am not sure 
but what sbe was. 

Senator Long. Suppose an Indian, a Chickasaw, had a Cluckasaw 
wife and tlu-ee children by her, and had two children illegitimately 
with a freed woman, would the children of the freed woman be de- 
scendants and entitled? 

Mr. Ballinger. Unquestionably, under both of the decisions of the 
Department, and in my opinion under a proper construction of that 
grant, and I do not see how you can get away from it, as they would 
be a part of the community. 

Senator Brandegee. Would a citizenship depend on legitimacy? 

Mr. Ballinger. No, sir. 

Senator Brandegee. Suppose a child was born on an ocean stea- 
mer of an Indian who was on a trip, would he not be a citizen if his 
father was a citizen ? 

]\Ir. Ballinger. Certainly he would. 

Senator Stone. Do you mean an illegitimate cliild? 

Senator Brandegee. Is not an illegitimate child a citizen of the 
United States in that case; do they not follow the status of their 
father ? 

Mr. Ballinger. I made the statement yesterday that if a natural 
child was begotten by an Indian man on a white woman, and she not 
a citizen of this nation, that that cliild would take, as a citizen of the 
nation, an allotment, and would be enrolled. 

Senator Long. Whether there was marriage or not? 

]\Ii\ Ballinger. Whether there was any marriage or not, and 
regardless of whether the father was married at the time the child 
was begotten. 

S. Doc. 257, 59-2 7 



98 CHOCTAW AND CHICKASAW INDIANS. 

Now I am going to read from an opinion of the Choctaw and Chicka- 
saw citizenship court, and I want to ask the attorneys for the nations 
if they know of or have ever heard of a decision of the Department or 
the courts which is contrary to this decision. I read from page 167 of 
the compihition l)}^ the Department of the last decisions and i"eguhi- 
tions afi'ecting the work of tlie Commission: 

Taking this to be true, then, if there was no marriage the children of Lucy were 
illegitimate, begotten by a full-blood Choctaw Indian. This court has held in a case 
(Althea Paul et al. v. Choctaw and Chickasaw nations) that when then; was a natural 
child begotten by a Chickasaw Indian on a white woman the child was entitled to 
em'ollment as a member of the tribe by reason of the Chickasaw blood of his father. 

That is the court that knocked off, I do not know how many thou- 
sand people. That is what the court says, and if the Department or 
the coin-ts in these cases has or have ever varied from that holding 
I now invite correction of my statement. 

That is the decision of the (Jhoctaw and (-hickasaw citizenship 
court referred to in the decision of tlie Department. Now, I want to 
inquire if that is true with reference to a child hegotten hy an Indian 
man on a white woman. Is it to be reversed with refei'ence to the 
child begotten by an Indian man on a negro woman ^ The same 
general principle must apply. 

It has been stated here repeatedl}'^ that there are man>' negro per- 
sons of negro blood on those rolls. I have pur])osely hesitated about 
referring to those. There are 200 negroes without one drop of Indian 
blood in their veins on the rolls of the Choctaw Nation. Have you 
ever attempted to strike those names from that roll? Those names 
were placed there by the act of the council of 1896. They were 
adopted by the Choctaw Nation, for what purpose I am not now 
going to discuss, but those people were adopted and their names 
placed on the tribal roll, and unless I am mistaken — and if I am I 
invite correction — they are to-day on the tribal rolls prepared by the 
Commission and have received their allotments. 

Mr. Cornish. You invited interruption. What is your statement 
now? 

IVIi'. Ballinger. My statement is that inider the instructions given 
by the Choctaw Nation in 1896 — and I had them here yesterday — 
200 negroes without one drop of Indian blood in their veins were 
placed on the Choctaw rolls. 

Ml'. Cornish. That is just as untrue as it can be. It is absurd. 

Mr. Ballinger. The instructions directed the names to be placed 
upon the rolls. 

Mr. Cornish. The freedmen in the Choctaw and Chickasaw nations 
have been adopted as freedmen; the freedmen are enrolled and adopted 
as freedmen, but the statement that 200 persons have been enrolled as 
citizens is absurd. 

Mr. Ballinger. Those people that I have referred to have not one 
drop of Indian blood in their veins. 

Mr. Cornish. That statement I uneciuivocally deny, and I hope the 
committee will not give consideration to yoiu- bare statement contra- 
dicted by inine, unless you have evidence to support it. 

Mr. Ballinger. I will furnish those instructions. 

Mr. Cornish. What instructions? 

Mr. Ballinger. The instructions that were given by the Choctaw 
legislature to the committee that prepared the roll in 1896 and directed 



CHOCTAW AND CHICKASAW INDIANS. 99 

the enrollmont. The first instruction was to enroll ever}' person of 
Choctaw blood born and raised in the Choctaw Nation. That was the 
first instruction c^ven by that legislature. 

Mr. Cornish. What next? 

Mr. Ballixger. I do not recall them: but that was the first instruc- 
tion, to enroll every person of Choctaw blood born and raised in the 
Choctaw Nation. 

Mr. Cornish. And they did so ^ 

Mr. Ballingkr. They did not enroll those people. Now, it has 
been said 

Mr. CoRNLsii. If you will pardon me, you invite contradiction, and 
if it is disagreeable to the committee I shall not contradict you. Now, 
I want to state 

Mr. Ballinger. An}^ statement that 1 make here I invite contra- 
diction and correction of. 

Mr. CoHNisii. You make the statement and 1 deny it; now, what 
proof have you { 

The CiiAiR.MAN. If you have the proof ])resent it; if not, file it later. 

Senator W.vrner. You have not tiiose instructions here, have you? 

Mr. Ballinger. I have them in my papers and T will supply them 
and put them in my remarks. 

Senator McCumber. I can not understand what they will prove. 
Sup|)()se you grant the power of the tribe to increase its members and 
to aflo])t citizens, what does that do? 

Ml'. B.vLLiN(;Ki{. Mr. Cornish says there has been no discrimination 
against the negro. 1 sa}' tliat there has been by certain chiefs and 
certain headmen and certain oflicials down thei-e. that those names 
were put on the tribal rolls, and 1 reas.sert that. 

Senator Warner. It was favoritism in making up the rolls. 

Mr. B.vllinger. Here is the act of the Choctaw legislature approved 
October 10. 1S96. 

ACT OF CUUCT.WV LEGISL.\TURE .\PPROVEU OCTOBER IW, 1896. 
******* 

Sec. 3. Be it further enacted: It is hereby declared the duly of the Commissioners to 
examine the rolls made l)y the Commission appointed under the act of September 
18th, 18%. and also to expunge from said rolls of September 18th, 1896, the names of all 
persons whom tliey shall adjudge not to be citizens; and also to expunge from the rolls 
of freedinen and the leased district rolls all such names adjudged not to be citizens, 
the intention being that the name of no person adjudged by these Commissioners a non- 
citizen shall appear on any mils as a citizen. The Commission shall em'oll as citizens 
all who come under any one of the following heads, and all such persons are hereby 
declared to be citizens of the Choctaw Nation: 

I. All Choctaws by blood born and raised in the Choctaw Nation. 

II. All Choctaws l)y blood who have been admitted to citizenship by the general 
council and now residents of the nation. 

III. All white men who married Choctaw women In'fore the treaty of 186G in accord- 
ance with the laws of the (hoctaw Nation. 

IV. All white men who have married Choctaw women by blood in accordance with 
the Choctaw laws of 18G(j and the law of 1875 relating to intermarriage, and have not 
been divorced from them and have maintained a bona fide residence in the Choctaw 
or Chickasaw Nation. 

V. All white men who have married Choctaw women by blood in strict conformity 
with the laws of the Choctaw Nation of 1875 regidating intermarriage, or the Choctaw 
law of 187() regulating intermarriage, and have not been divorced from same nor mar- 
ried any other than a Choctaw woman by blood since said marriage. 

VI. All negroes who were enrolled and declared to be citizens of the Choctaw Nation 
by the registration board of 1883. 

VII. All descendants of siich enrolled negro citizens since registration. 



100 CHOCTAW AND CHICKASAW INDIANS. 

VIII. All white women who have married Choctaws by blood legally, and who have 
not been divorced from them or since married any other than a Choctaw by blood, a 
recognized citizen and resident of the Choctaw or Chickasaw Nation. 

IX. All Choctaws by blood who are now serving terms in the penitentiary who, at 
the time of their conviction and sentence, were residents of the Choctaw or Chickasaw 
Nation. 

And the Commission are especially prohibited from enrolling as citizens any persons 
coming under the following heads: 

I. Negroes, noncitizens, who have intermarried with negro citizens. 

II. The children of any marriage where neither the father nor mother are Choctaws 
by blood, though one or both of said children's parents may have enjoyed intermar- 
riage rights. 

III. All persons who, though they had at one time intermarried rights, afterwards 
married a person not a Choctaw by blood (being the father or mother of Choctaw citi- 
zens shall not save a person from this clause). 

IV. All white men who took Choctaw women by blood and went without the juris- 
diction of the Choctaw Nation and were there married. 

V. All white men who married Choctaw women by blood in the Choctaw Nation, 
but not according to Choctaw law. 

VI. All persons who have been admitted to citizenship with their wife or husband 
by the general council and afterwards the wife or husband, Choctaw by blood, dying, 
the surviving party, being a white person, has intermarried with a person not a Choc- 
taw by blood. 

VII. All persons who have applied for citizenship and have not been accepted by 
the general council. 

VIII. All persons born out of wedlock, except the mother be a Choctaw by blood: 
Provided, The children of negi'o women and their descendants, registered as citizens 
by the board of freed men registration, though born out of wedlock, shall be registered. 

I reassert that in the preparation of the tribal rolls by the Commis- 
sion they did not adhere to the tribal rolls. I assert, in the case of 
Boss McCoy — and the evidence is in that record, in the form of certi- 
fied copies — that Boss McCoy's wife's name appeared upon the roll 
of 1885 and that the names of each one of his children born prior to 
the preparation of that roll were on that roll, and I assert that each 
and every one of those children have been enrolled as fi'cedmen by 
the Commissioner and his decision approved by the Secretary. 
There is a tribal recognition; they did follow it in that case, and they 
have not followed it in but very few cases. 

Now, it said that if you open these rolls the padding of them will 
be beyond comprehension; it will be appalling. Senators, we ask in 
this case that you give these people the rights which they had under 
the law under which they appeared before the Commission in 1898. 
If the Commission at that time had inserted in the record the words 
" application for enrollment as a citizen," we would not be here before 
you to-day. That is all there is lacking in any one of these cases — 
those tln-ee or four words, "application for enrollment as a citizen." 
If those words had been placed in these records, these people would 
have been enrolled and would be on the citizenship rolls to-day. Mr. 
Cornish asserts that the Perry decision enunciates a new doctrine, a 
new idea. The members of the committees — freedmen committees 
and others, who sat with this Commission in the Indian Territory — 
and I am asserting now that which is in the record and that which is 
sworn to by a man, for whose integrity Mr. Cornish vouches, who says 
that they appealed to his committee for enrollment as citizens; that 
he was instructed by the Commission to deny them their rights and 
to report their cases only for enrollment as citizens. 

That is the question. It is not a question now as to whether or not 
they took allotments as freedmen. The question is, Were they given 
that kind of enrollment under the act under which they appeared 



CHOCTAW AND CHICKASAW INDIANS. 101 

before the Comrnission ? And if they had not appeared, the Commission 
could have summoned them; it had all the power it was possible 
to give a Coinmission to bring them in arbitrarily; and when they 
brought them in, it was directed by the Assistant Attorney-General, in 
the very decision that was referred to, to enroll thein as citizens if the 
names of their ancestors appeared on any tribal rolls. ''The act of 
1897 did not provide for new applications for citizenship; neither did 
the act of 1898 make any provisions for new applications for citizen- 
ship." That is what Attorney-General Van Devanter said to t*he 
Commission when it was proceeding under the act of 1898, and not- 
withstanding those instructions, prepared by an admittedly great 
jurist, the Commission asserts now that it was necessaiy for them to 
make an ajmlication. That is all there is lacking in this case — an 
application for citizenship. 

Now, it is said that Attorney-General Van Devanter in his decision 
held that these peoi)le were not entitled to enrollment. I am going to 
show you l)y this clecision that he held that they were entitled to 
enrollment. Here is what he said : 

They wore not authorized to add any name not found upon some roll of the tribe 
except tlioye of de^eendanty of persons rightfully upon some rod and persons inter- 
married with meml)ers of the trilies and therefore lawfully entitled to enrollment. 

These people are descendants — descendants within every possible 
meaning of the word. They were directed to enroll them and they 
did not do it. 

Senator McCumber. They were descendants of those on the roll ? 

Mr. Ballinger. Yes, sir. 

The Chairman. Please read that again. I do not think it is 
limited to any roll. 

Mr. B.\LLiNGER. Here is the language: 

They were not authorized to add any names not found upon some roll of the tribe, 
except those of descendants of persons rightfully upon some roU and persons inter- 
married with members of the tribes and therefore lawfully entitled to enrollment. 

That included these people and their descendants. It is stated 
that the Commission has enrolled all persons rightfully entitled to 
enrollment under the tril)al laws. That I deny, and I assert now 
and here that the Commission never has had in its possession all 
of the tribal rolls of these nations. It had in its possession certain 
rolls, and it has selected which one of those rolls it would use as a 
basis. I deny that the rolls that it has in its possession are correct 
rolls. Why^ Because those rolls were made up fTom county rolls 
in the Choctaw Nation, and the Commission and the nation in 
making the one roll did not place upon the one roll all the names 
that were on the county rolls. Now, those county rolls were cer- 
tainly as correct as the rolls selected by the Commission to be used 
by it as a basis of determining who were entitled to enrollment and 
who were not. Some of those rolls are in the Treasury Department — 
tribal rolls upon which moneys have been paid to people down there. 

They have never been in the possession of the Commission; the 
Commission knows not whose names are on those rolls, and yet they 
say that these people are not entitled to enrollment because their 
names are not on the rolls selected by them as their standard. The 
Commission gives sanctity to some rolls and casts all other tribal 
rolls out as spurious. General Van Devanter — and he is one of the 



102 CHOCTAW AND CHICKASAW INDIANS. 

ablest men who ever presided over that Department — held that if 
they were descendants of persons whose names were on any tribal 
rolls, they were entitled to enrollment. That is all we are contend- 
ing for. 

Now, there have been many other things dragged into this con- 
troversy; it has ramified all over all classes of cases. Now, the facts 
in connection wdth the Mary and Elizabeth Martin case were not 
correctly stated. I will state them, and if my statement is not 
absolutely correct I invite interruption. The case of Mary and 
Elizabeth Martin was this: The father of that girl intermarried 
mto the Choctaw Nation; the mother of that girl intermarried in 
the Choctaw Nation, and both were adopted and became citizens. 
The Indian husband of the adopted white woman died, and the 
Indian wife of the adopted white man died, and the \\ddower and 
^^^dow, both adopted into the nation, intermarried. 

Senator Clark, of Wyoming. Both white? 

Mr. Ballinger. Both white. But both of them intermarried 
citizens of the nations, and the contention was that the child of the 
two citizens was a citizen, and it is a natural and logical contention, 
for certainly the cldld takes the citizenship of one parent or the 
other, and it coidd not take the citizenship of either without becoming 
a citizen of the nations. Am I correct in that statement, Mr. Cornish ? 

Mr. Cornish. That is substantially correct, but it has no bearing 
here. In referring to the Martin case, 3"ou said yesterday that that 
decision of Mr. Van Devanter's in that case was the law at this time 
and never had been overruled. 

Senator Long. ]\Ir. Campbell recited that. 

Mr. Cornish. Yes, sir. 

Senator jMcCumber. What was the decision in that case? 

Mr. Ballinger. That the chikl was entitled to enrollment. That 
was not only Mr. Campbell's decision in that case, but Judge Clay- 
ton's decision in similar cases in the Territory, and tlie books are 
full of similar decisions. 

Senator Long. It was the Attorney-General's decision? 

Mr. Ballinger. I think it was argied and reargi;ed and submit- 
ted and resubmitted to the Attorney-General's Office. It was then 
after having l)een reaffirmed by the Assistant Attorney-General, that 
it was referred to the Department of Justice. I have never seen the 
decision of the Attorney-General in the case, but I iiuderstand that 
he made a memorandum statement that the child was not entitled 
to enrollment, and that statement has been lodged somewhere — 
either sent here to the Capitol or lodged in the Department of the 
Interior, and that case is now before the Attorney-General for con- 
sideration. 

The Chairman. I think it was a letter; I think we had it here last 
winter in connection with this discussion. 

Senator McCumber. What did he hold? 

The Chairman. He reversed Judge Campbell, as I recall it. 

Mr. Ballinger. I do not know anything about that, but I do not 
want the committee to lose sight of the fact that both of these people 
were citizens. During this discussion there has been a great rami- 
fication over court decisions, and it has been said that if you open 
up these rolls as prepared by the Commission you are going to bring 
in twenty or fifty thousand people who are as much entitled to 



CHOCTAW AND CHICKASAW INDIANS. 103 

enrollineiit as these j)eo])le. That I deny. They may have Indian 
blood in them, l)iit they left the nation and went off into Texas and 
other States and did not return to the Indian Territory and appear 
before the Commission and ask for consideration in 1898. They 
never were entitled to it under the law, because they were not citi- 
zens and residents of the Indian Territory; they were not, in fact, 
citizens of the nations, and therefore their application, if they made 
one, was. and mi st necessarily be, denied. These people were born 
in the nation and their parents- enrolled: their fathers are enrolled, 
and they are denied the citizenship of their father. They have been 
born and raised in his home; he was a citizen; they grew to man's 
estate and participated in elections. Their citizenship has never 
been questioned or denied in the Choctaw Nation. The chief jrstice 
of the Clioctaw Nation, in the B\ ckholts case, which I referred to 
yesterday, held that the citizenship of the father carried with it 
the citizensliip of his descendants. I mean that the recognition of the 
father as a citizen by blood carried with it the recognition of his 
descendants; that is the langi:age. 

Now, if there is anything that can bind the Choctaw Nation it is 
the decision of it's own courts — the highest court in the nation — and 
that is what their supreme court asserts to be the law. Here is an 
exact copy of what is in the book. I read from page 109. In the 
opinion of the Assistant Attorney-General for the Department of 
the Interior in the case of James M. Biickholts, it is stated: 

William Uuckhiilts ai)jilic(l under this act to the supreme judges of the Choctaw 
Nation to have his citizenship rights determined: that the said William Buckholts 
attempted to include the names of hLs descendants in his application, but was informed 
by the chief justice that this was unnecessary and that his (William Buckholt's) recog- 
nition as a rhociaw l)y blood carried with it the recognition of his children 

Senatoi' McCu.mber. llis children by whom? 

Mr. liALLiNC.KU. It does not say; the facts do not appear in the 
decision as reported. 

Senator Long. That is important. 
Mr. Balli.nger. It proceeds: 

That for this reason, and following the general custom in such cases at that time, 
the names of his descendants were not included in said application. 

Mr. CoRXisn. The Senator makes an inquiry, and I think I can 
fuiiiish the information. These are verA' well-known people in the 
Choctaw and Chickasaw nations. There can be no question of their 
legitinuicv. They are well-to-do peo|)]e there. I am stating that 
as a matter of general iid'ormation. 

Mr. Ballinger. If that be true why was it that in this decision 
the word " descendants '' was used ? A\Tiy did it not say his legitimate 
children and grandchildren^ But it says "descendants," in exact 
line with the treaty of 1830. 

Senator Braxdegee. What does he say — recognition of what? 

Mr. Ballinger. Recognition of his descendants as citizens. 

Senator Sutherland. He uses both words there, his children and 
afterwards he uses the word "descendants" as practically synonmous. 

Senator Braxdegee. Do these people vote there? Are your 
claimants voters there? 

Mr. Ballixger. They have participated in every tribal election. 
Is that not true? 



104 CHOCTAW AND CHICKASAW INDIANS. 

Mr. Cornish. No; that is not true. In the Choctaw Nation the 
Choctaw freedmen have been adopted and have participated in the 
tribal elections, but the Chickasaws have never given any recognition 
to their freedmen until the law of 1898, when provision was made for 
tentative allotments of 40 acres. 

Senator McCumber. The treaty gives them the right to take part 
in the voting, etc. ? 

Mr. Cornish. If they shall have been adopted in accordance with 
the treaty. The treaty of 1866 gives the Choctaws and Chickasaws 
the right to adopt; the Chickasaws never did adopt them, but the 
Choctaw freedmen do participate in the election. 

Mr. Ballinger. Here are the constitutional requirements. Let 
us see whether these people are eligible or not to hold any office from 
principal cliief down. 

Senator Dubois. It is with regard to the Chickasaws that he makes 
the point. 

Mr. Ballinger. Let us see about it in the Chickasaw Nation. The 
Chickasaw constitution provides that: 

Article 2, section 3. — ^AU free persons of the age of 19 years and upward, who are by 
birth or adoption members of the Chickasaw tribe of Indians and not otherwise dis- 
qualified, and who shall have resided six months immediately next preceding any 
election in the Chickasaw Nation, shall be deemed qualified electors under the author- 
ity of this constitution. 

Article 4, section 3. — No person shall be a representative unless he be a Chickasaw by 
birth or adoption * * *. 

Article 5, section 3. — No person shall be eligible to the office of governor unless he 
shall have attained the age of 30 years and shall have been a resident of the nation for 
one year next preceding his election. Neither shall any person except a Chickasaw 
by birth or an adopted member of the tribe, at the time of the adoption of this consti- 
■tution be eligible to the office of governor. 

Senator Long. Does that include freedmen? 

Mr. Ballinger. It includes descendants by birth in the nation; 
persons of Indian blood born in the United States. 
Senator McCumber. Read that again. 
Mr. Ballinger: 

Article 2, section 3. — ^All free persons of the age of 19 years and upward, who are by 
birth or adoption members of the Chickasaw tribe of Indians and not otherwise dis- 
qualified, and who shall have resided six months immediately next preceding any 
election in the Chickasaw Nation, shall be deemed qualified electors under the author- 
ity of this constitution. 

Article 4, section 3. — No person shall be a representative unless he be a Chickasaw by 
birth or adoption * * *. 

Article 5, section 3. — No person shall be eligible to the office of governor unless he 
shall have attained the age of 30 years and shall have been a resident of the nation for 
one year next preceding his election. Neither shall any person except a Chickasaw 
by birth or an adopted member of the tribe at the time of the adoption of this consti- 
tution be eligible to the office of governor. 

Senator McCumber. They have to be a member of the tribe by 
birth or adoption? 

Mr. Ballinger. Certainly; the birth in the nation of a cliild to a 
citizen carries with it the citizensliip of the parent. From where 
could a child get liis citizensliip except citizenship by birth or 
adoption? 

Senator La Follette. Does that make them members of the tribe? 

Mr. Ballinger. Certainly it does; he is a qualified elector there 
and a man capable of holding any office under the tribe. 

Senator Stone. As a matter of fact do they exercise it ? 



CHOCTAW AND CHICKASAW INDIANS. 105 

Mr. Cornish, No; they do not. They never have. 

Mr. Lee. If vou will allow me to make a statement, I will give as a 
concrete case tliis Newberry case that has just been quoted. A sen- 
ator of the Chickasaw legislature stated under oath, and liis affidavit 
will be offered in tliis case, that those Newberry boys appeared at 
an election to vote; a question was raised as to whether they were 
entitled to vote, and, that certain old well-laiown citizens of the nation 
and officers of that election determined that they were entitled to 
vote and were citizens of the nation; and this senator goes further and 
states that he considered that the vote of these men elected him a 
senator of the nation. 

The affidavit is as follows: 

AFFIDAVIT OF JAMES A. ALEXANDER. 

Indian Territory, southern district, ss: 

James A. Alexander, first being duly sworn, on his oath states that 
he is 43 years of age, a resident of the city of Ai'dmore, Chickasaw 
Nation, Indian Territory; that he was born and raised in the Indian 
Territory. Deponent states that his grandmother on his mother's 
side, who died about eight years ago at the age of 90, was a Love and 
the aunt of one Ben Love. Deponent states that he has often heard 
his grandmother say thiit Caldonia Newberry was the diiughter of Ben 
Love, a Chickasaw Indian of about seven-eighths blood. 

Deponent further states that at an Indian election held at Rock 
Springs in the year 1890 he was a candidate for election to the Jndian 
senate at which election the Newberry boys, sons of the said Caldonia 
Newberry, who appeared to cast their votes, were questioned as to 
their right to do so, whereupon deponent's uncle, Frank Colbert, 
stated to the judges that the Newberrys were descendants of Ben 
Love and a mixed breed woman, jind were entitled to vote in said 
election; that it was so ordered and the}^ did vote, electing deponent 
to the senate. 

Further, deponent says that the Caldonia Newberry above referred 
to, who is making this application, is the same as has been pointed out 
to him all his life by his grandmother as the daughter of the said Ben 
Love. 

James Arthur Alexander. 

Subscribed and sworn to before me this 22d day of June, 1905. 
[seal.] J. McNaught, 

Notary Public for the Southern District, Indian Territory. 

Senator Warner. And the Newberry boys were what? 

Mr. Lee. They w^ere that class of persons — mixed Indian and 
negro — who iire now enrolled as freedmen by the Commission. 

Mr. Cornish. There may be an isolated case of that kind. 

Mr. Ballinger. This is no isolated case. The rule applied in all 
cases, and I assert fi'om the record in this case that these people have 
been citizens and are citizens to-day. Mr. Chairman, owing to the 
fact that it- is getting late, and I think nearly every phase of this 
question has been covered, except the decision in the case of the New 
York Indiums v. The United States, which is as follows, I will close, 
thanking: vou for vour courteous consideration. 



106 CHOCTAW AND CHICKASAW INDIANS. 

The Chairman. As I understand, this anien(hnent is a tentative 
])roposition. If the committee shoukl decide to go into that matter 
they will take up the question of the details. 

The committee thereupon adjourned. 



DECISION OF THE COMMISSIONER AS SET OUT IN THE DECISIONS OF THE COMMIS- 
SIONER OF INDIAN AFFAIRS AND THE DEPARTMENT, AND THE DECISIONS OF 
THE COMmSSIONER OF INDIAN AFFAIRS AND THE DEPARTMENT IN THE NEW- 
BERRY CASE. 

Department of the Interior, 

Office op Indian Affairs, 
Washington, December 3, 1906. 
The Honorable the Secretary of the Interior. 

Sir: I have the honor to invite your attention to the inclosed letter of September 
17, 190(3. from Tains Bixby. Commissioner to the Five Civilized Tribes, who acknowl- 
edges the receipt of Departmental letter of July 14, 19()() (T. T. D. 8093-190(J ), inclosing 
for consideration and report a communication of June 20, 190(3, from Albert J. Lee, an 
attorney at law of Ardmore, Ind. T.. relative to the petition of Calvin Newberry 
et al. for the transfer of tlieir names from the roll of Chickasaw freedmen to the roll of 
citizens by blood of the Chickasaw Nation. 

The Commissioner says that Mr. Lee inclosed with his letter a copy of tlie (jrder or 
decision of the Commissioner of June 14, 190(3, denying the petition for the transfer of 
the names of Calvin Newberry and his minor children, Ethel and Mal)elle Newberry; 
Simon Newberry and his minor children. Isom, Dertha. Ben, Lillie. and Mary New- 
berry; \\'illie Newberry and his minor childnm, EtRe, \\'iley, Willie, and Sadie New- 
berry; Louis Newberry and his minor child, Lula Newberry; Mira Stevenson and her 
minor child. Grady Stevenscin; Lula Stevenson and her minor child, Loan Stevenson, 
from the roll of Chickasaw freedmen to the roll of citizens by Ijlood of tlu; Chickasaw 
Nation. • 

The Commissioner further says that Mr. Lee also transmits his affidavit of June 20, 
1906, wherein he alleges that the docket of citizenship cases in the office of the clerk of 
the United States court for the southern district of the Indian Territory at Ardmore, 
having record of the cases appealed from decisions of the Commission to the Plve 
Civilized Tribes under the act of Congress approved June 10, 1906 (29 Stat. L., 321), 
shows that the application was made on August 31. 1896. by Callie Newberry for the 
enrollment of herself and Sam. Willie, Louis, Calvin, Mariah, Lula, and Lydia New- 
berrj for citizenship in the Chickasaw Nation, to the Commission to the Five Civilized 
Tribes under the act mentioned aliove. 

The Commissioner finds that the Depart men t in its letter says that in view of the 
fact that the records of his office are. under the provisions of the act of Congress 
approved April 26, 1906 (.34 Stat. L., 137), conclusive as to these applications, and 
further search should be made of the records for the purpose of ascertaining if any 
application was made by the persons named in Mr. Lee's affidavit for citizenship in 
the Chickasaw Nation under the provisions of the act of June 10, 1906. 

The Commissioner reports that in his decision or order of June 14, 1906, denying the 
petition for the transfer of tlie names of Calvin Newberry et al. from the roll of Chicka- 
saw freedmen to the roll of citizens bv blood of the Chickasaw Nation, it was held 
that— 

" It does not appear from the records of this Office that any application was made for 
the enrollment of the petitioners or any of them as citizens by blood of the Chickasaw 
Nation prior to December 25, 1902," 

and that he finds from an examination of the records of the Commission to the Five 
Civilized Tribes, in reference to applications submitted under the provisions of the 
act of June 10, 1906, that there was filed with the Commission on September 9, 1896, 
a petition of Callie Newberry praying for admission to citizenship in the Chickasaw 
Nation. 

This petition was docketed as "1896 Chickasaw citizenship case No. Ill," and he 
says it appears to have been considered and adjudicated by the Commission on Novem- 
ber 10, 1896, when an order was entered denying the petition. 

He further finds that this case appears on the 1896 citizenship docket of the Com- 
mission now in his office as follows ;jj 



CHUCTAU \S[) CHKKASAW INDIAIs'S. 107 

•'111. Callie Newberry v. Chickasaw Nation. Elmore, Ind. T. 

• Filed September 9. 1896. Answer filed. 

■■ Application denied." 

He reports that the original petition in the case is not in the possession of his office, 
and it is not believed to be probable that it is now in existence, but he does find from 
the records in his office that from the adverse decision rendered by the Commission 
on November 10. 1896. an appeal was taken to the United States court for the southern 
district of the Indian Territory. 

The Commissioner further says that notice of this appeal was furnished the Commis- 
sion to the Five Civilized Tribes l)y the clerk of the United States court for the south- 
em district of the Indian TeiTitory on January 9. 1897, and it was directed that all the 
original papers be immefliately forwarded to the court to be used and considered in 
the case of Callie Newl)eny et al. r. Chickasaw Nation. 

He further linds that the case was docketed on the citizenship docket of the United 
States court for the southern district of the Indian Territory, as citizenship case No. 85, 
and entitled Callie Newberry v. Chickasaw Nation. 

He finds from the records of his office that the original papers, filed with the Com- 
mission on September 9, 1896, were transmitted to the clerk of the United States 
court in conformity with the notice of appeal of January 9. 1897. and the receipt of the 
clerk of the court therefor was forwarded to the Conunission on February 5, 1897. He 
transmits for the information of the Department the notice of appeal and receipt of 
the clerk of the United States court for all of the papers found in the files of his office 
in reference to the 189(i citizenship case of Callie Newberry. 

He further reports that there; is no entry on the records of his office of any additional 
consideration or disposition of the case by the United States court until an order of 
dismissal by the court entered on January 15. 1900, a certified copy of which he trans- 
mits for the information of the Department. 

Mr. Bixby .^ays that after the receipt of Departmental letter of July 14, 1906, he 
requested the clerk of the I'nited States court for the southern district of the Indian 
Territory to furnish a certified copy of all the docket entries in the case of Calli(> New- 
berry V. Chickasaw Nation. United States court, southern district citizenship case 
No. 85. and the clerk furnished him a certified copy of the docket entries on Septem- 
ber 7, 190(i. which is inclosed. 

Mr. Bixbv explains that the original records in the majority of the citizenship 
cases appealed from the decisifms of the Commission in 1896 to the United States 
court, were destroyed in a fire which consumed the United States court-house at 
Ardmore in the year 1897. He expresses th(» belief that the original papers filed with 
the Conunission on September 9, 1890, were thus destroyed, but he says that tlie clerk 
of the court has furni.«he(l him with what ])urported to be copies of the original papers 
filed in this case, and which arc all the records in his office in reference thereto. These 
papers an> transmitted for tlx- use of the Department. 

lie also says it is to be noted that in the copy of the aflldavit of Callie Newberry, 
which purports to have been sworn to on August 31, 1896, the following allegation is 
made: 

"I have seven children living; their names are Sam. Willie. Louis, Calvin, Mariah, 
Lula, and Lydia Newberry. " 

and he rt'quests that this matter receive the consideration of the Dei)artment and 
that the jxipers be returned to his f)ffice. as they were temporarily withdrawn from 
the records of the office of the clerk of the United States court for consideration in 
rei)lying to Dejiartmental letter of July 14, 1906. He particularly notes that there 
is nothing in the records of the Commission or of his office which would in any manner 
indicate that any other person was named in the original y)etiti(m in 1896 citizenship 
case No. Ill, and tiled with the Coinmi.ssion on Sei)teml)er 9 of that year than the 
petitioner, Callie Newbeiry. 

The records of the Commission and of his office failing to show that any application 
had been made for the enrollment of the persons named by Mr. Lee in his petition 
of Februarj'^ 12, 1906, as citizens by blood of the Chickasaw Nation prior to December 

25, 1902, the Commissioner says that Mr. Lee now seeks to invoke the aid of the records 
of the United States coint f(')r the purpose of showing that such an application was 
made under the provisions of the act of June 10, 1896. 

The Commissioner quotes from section 4 of the act of Congress approved April 

26. 1906, supra, as follows: 

''That no name shall be transferred from the approved freedmen or any other 
approved rolls of the Choctaw, Chickasaw, Cherokee, Creek, or Seminole tribes, 
respectively, to the roll of citizens by blood, unless the records in charge of the Corn- 
missioner to the Five Civilized Tribes show that application for enrollment as a citi- 
zen by blood was made within tlie time prescribed by law by or for the party seeking 



108 CHOCTAW AND CHICKASAW INDIANS. 

the transfer, and said records shall be conclusive evidence as to the fact of such 
application, unless it be shown by documentary evidence that the Commission to 
the Five Civilized Tribes actually received such application within the time pre- 
scribed by law. " 

and says that this provision of the act, in his opinion, prohibits the transfer of the 
names of persons from the approved rolls of Choctaw and Chickasaw freedmen to 
the rolls of citizens by blood of the Choctaw and Chickasaw nations, unless appli- 
cation for enrollment as citizens by blood of either of the nations was made on or 
before December 24, 1902, the time prescribed by law for the termination of the 
reception of applications for enrollment in these two nations. 

He says he does not consider that the copy of the affidavit of Callie Newberry 
of August 31, 1896, can in any manner be construed as an application made under 
the act of June 10, 1896, for citizenship in the Chickasaw Nation of her seven children — 
Sam, Willie, Louis, Calvin, Mariah. Lula, and Lydia Newberry; but, admitting 
for the sake of argument that this affidavit of Callie Newberry is construed as an 
application submitted on behalf of these persons for citizenship in the Chickasaw 
Nation under the act approved June 10, 1896, he is of the opinion that they would 
be bound by the decision of the Commission of November 10, 1896, denjdng the 
petition filed by Callie Newberry on September 9, 1896. 

He gives it as his opinion that the Commission did have jurisdiction over these 
persons under the act of 1896, if they applied for admission to citizenship in the Chick- 
asaw Nation, and the decision of November 10, 1896, would have been determinate 
as to their right to citizenship in the nation. 

He cites the fact that the Department held, on May 25,1906 I. T. D., 9114-1906), 
in the Cherokee enrollment case of Laura E. Akin et al., that — 

"As the Commission to the Five Civilized Tribes had jurisdiction when it denied, 
under the provisions of the act of Congi-ess of June 10, 1896 (29 Stat. L., 21), the prin- 
cipal applicant's application for recognition as a citizen of the Cherokee Nation, 
there could be no 'continuing application,' as contended by the attorney for the 
claimants." 

It is the opinion of the Commissioner that Mr. Lee is seeking to establish that an 
application was made within the time prescribed by law for the persons named in the 
petition of February 12, 1906, as defined by section 4 of the act of April 26, 1906, and 
that Mr. Lee has failed to show that these people come within the provisions of the 
law, and recommends that his decision of June 14, 1906, denying the petition, be 
affirmed. 

In this connection he also acknowledges the receipt of departmental letter of Sep- 
tember 6, 1906 (I. T. D. 7227, 12724-1906) in reference to the ])etition for the transfer 
of the name of Delbert Green from the roll of Choctaw freedmen to the roll of citizens 
by blood of the Choctaw Nation, and in wliich action was suspended by the Depart- 
ment until a report was submitted by the (\>mmissioner showing whether application 
was made for Delbert Green for citizenship in the Choctaw Nation under the act of 
Congress approved June 10. 1896, and directing that specific information of like charac- 
ter be furnished in all similar cases where the date of the application is material. 

He reports in that connection that in the consideration of petitions for the transfer of 
the names of persons from the approved rolls of Choctaw and Chickasaw freedmen to the 
rolls of citizens by blood of the two nations, examination has been made of the records 
of petitions for citizenship in the Choctaw and Chickasaw cases submitted under the 
act of Congress approved June 10, 1896, and that the findings of fact in those decisions 
that application was not made within the time prescribed by law is a correct reflection 
of the records of his office, but it is possible however, that in a few cases similar to the 
one under discussion and where the original papers filed in 1896 have been transferred 
to the United States court, such petitions may have included the names of persons who 
do not appear on the 1896 citizenship records of the Commission. 

He expresses himself as being firmly of the opinion that the Commission, under the 
act of June 10, 1896, acquired jurisdiction over all persons who applied for admission 
to citizenship in the Choctaw and Chickasaw nations under the provisions of that act, 
who had not theretofore been recognized citizens of either of the tribes, by having 
their names placed on some tribal roll of such citizens, or being duly and lawfully 
admitted to citizenship by some constituted authority of either of the nations, and 
that the decisions adverse to such persons were final. 

Mr. Bixby holds that the petitions submitted on behalf of Choctaw and Chickasaw 
fi-eedmen for admission to citizenship in the Choctaw and Chickasaw nations under 
the act of Congress approved June 10, 1896, and which were denied, can not, as held by 
the Department in its letter of May 25, 1906 (I. T. D. 9114-1906), be construed as 
"continuing applications " as contemplated bv section 4, of the act of Congress approved 
April 26, 1906. 



CHOCTAW AND CHICKASAW INDIANS. 109 

In connection with the petition filed by Mr. Lee on February 12, 1906, for the trans- 
fer of the names of Calvin Newberry et al. from the roll of Chickasaw freedmen to the 
roll of citizens by blood of the Chickasaw Nation, 'Mv. Bixby says he desires to invite 
attention to departmental letter of December 4, 1905, (I. T. D. 16096-1905), denying 
the petitions submitted by Charles von Weise, of Ardmore. for the transfer of the names 
of Lula Stevenson et al., Louis Newberry et al., Willie Newberry et al., Nelson Col- 
bert. Stephen Alexander et al., and Sampson Alexander et al. from the roll of Chicka- 
saw freedmen to the roll of citizens by blood of the Chickasaw Nation. He also trans- 
mits a supplemental motion in the case of Lula Stevenson et al. Willie Newberry et 
al., and Louis Newberry et aL.hled in his office by Mr. von Weise on December 12, 
1905. 

He also transmits for the consideration of the Department in connection with the 
petition, the petition transmitted June 14, 1906, in the case of Calvin Newberry and 
supplemental petition tiled in his office on March 5, 1906, by Albert J. Lee, on behalf 
of \\'illie Newberry, as administrator of the estate of Lydia Newberry, deceased, for 
the transfer of the name of Lydia Newbeny from the roll of Chickasaw freedmen to the 
roll of citizens by blood of the Chickasaw Nation. 

Finally, he says the statements contained in his order or decision of June 14, 1906, are 
applicaljle to this latter petition, and he invites attention to the fact that the person on 
whose behalf the petition is submitted appears in the copy of the affidavit of Callie 
Newljerry of August 31 , 1896, as Lydia Newberry. 

The Commissioner submits proof of the fact that Calvin Newberry did in 1896 make 
application for the enrollment as citizens of the Chickasaw Nation of his children, Sam, 
Willie. Louis, Calvin, Mariah, Lula, and Lydia Newberry, basing his claim for right to 
enrollment on his descent from Ben Love, his father, who was a half-breed Chickasaw 
Indian. His claim was contested by the Chickasaw Nation on the ground that he was a 
freedman who had been held in slavery and was not entitled to recognition or em-oll- 
ment as a citizen by blood of the nation. On the issues thus joined his case was tried, 
and the Commission to the Five Civilized Tribes determined that the applicants were 
not entitled to enrollment as citizens by blood of that nation. The case having been 
appealed to tlie United States court from the adverse decision of the Commission, the 
applicants failed to prosecute their appeal, and it was dismissed for want of prosecution. 
In that manner, under the law then m force, the decision of the Commission became 
final. 

The Commi.'^sioner gives no history of the subsequent application under which these 
persons were enrolled as Chickasaw freedmen, nor does he submit a copy of the proof 
on which the enrollment was predicated. From his explanation of the manner of pro- 
cedure in his office in ca«es of this character, it must be assumed that the proof sub- 
sequently submitted in no way tended to sustain a claim that these persons were 
Chickasaws l)y blood, but did satisfactorily establish their right to enrollment as 
Chicka.saw freedmen. While it would have been much more satisfactory to have had 
a copy of the proof submitted on that question, the office assumes that adequate exami- 
nation has been made and that a preponderance of the evidence which was submitted 
to the Commission or commissioner was to the effect that these persons were not of 
Chickasaw blood, but were, in fact, Chickasaw freedmen. 

For these reasons the office recommends that the application for the transfer of the 
persons named in the application of Calvin Newberry be denied. 

Lender the report of the Commissioner it is assumed that there is no proof in his office, 
nor has there ever been, showing that the other parties applicant who are mentioned 
in this case have applied for or established their right to enrollment as Chickasaws 
by blood within the time provided by law. It is therefore recommended that the 
Commissioner's decision as to these persons be approved and that the application be 
denied. 

Very respectfully, C. F. Larrabee, Acting Commissioner. 



Department of the Interior, 

Washington, December 13, 1906. 
Commissioner to the Five Civilized Tribes, 

Muscogee, Ind. T. 
Sir: December 3, 1906, the Indian Office submitted your report of September 19, 
1906, relative to the petition of Calvin Newberry et al. 

On June 14, 1906, you denied the petition for the transfer of the names of said Calvin 
Newl)erry and his minor children, Ethel and Mabelle Newberry; Simon Newberry 
and his minor children, Isom, Bertha, Ben, Lillie, and Mary Newberry; Willie New- 
berry and his minor children, Effie, Wiley, Willie, and Sadie Newberry; Louis New- 



110 CHOCTAW AN^D CHICKASAW INDIANS. 

berry and his minor child, Luhi Newberry; Mira Stevenson and htr minor child, 
Grady Stevenson; Lula Stevenson and her minor cliild, Loan Stevenson, from the 
roll of Chickasaw freedmen to the roll of citizens by blood of the Chickasaw Nation, 
as it did not appear from the records of your oflice that any application was made for 
the enrollment of the petitioners, or any of them, as citizens by blood of the Chickasaw 
Nation prior to December 25, 1902. 

June 20, 1906, the attorney for the petitioners transmitted to the Department his 
affidavit wherein he alleges that the docket of citizenship cases in the office of the 
clerk of the United States court for the southern district of the Indian Territory shows 
that application was made on August 31, 1896, by Callie NewbeiTy for the enrollment 
of herself and Sam, Willie, Louis, Calvin, Mariah, Lula, and Lydia Newberry for 
citizenship in the Chickasaw Nation to the Commission to the Five Civilized Tribes 
under the act of June 10, 1896 (29 Stats., 321). 

Yoii find from an examination of the records of the Commission to the Five Civilized 
Tribes, in reference \o applications submitted under the provisions of the act of June 
10, 1896, that there was filed with the Commissit)n on September 9, 1896, a petition 
of Callie Newberry, praying for admission to citizenship in the Chickasaw Nation, 
and that on November 10, 1896, an order was entered by the Commission denying the 
petition; that this case appears on the 1896 citizenship docket of the Commission as 
No. Ill, Callie Newberry v. the Chickasaw Nation. You informed the Department 
that the original petition in the case is not in the possession of your office and is not 
believed to be now in existence; but you find that from the decision rendered by the 
Commission Novemlier 10, 1896, an ajjpeal was taken to the United States coiut for 
the southern district of the Indian Territory, and tbat the case was docketed on the 
citizenship docket of the court as citizenship case No. 85, entitled Callie Newberry v. 
the Chickasaw Xaiion. It also appears from the records of your office that the original 
papers, filed with the Commission on September 9, 1896, were transmitted to the clerk 
of the court in conformity with a notice of appeal of January 9, 1897. You report that 
there is no entry on the records of your office of any additicmal consideration or dispo- 
sition of the case by the court until an order of dismissal by the court, entered on 
January 15, J 900. It appears that the original records in the majority of the citizen- 
ship cases appealed from the decision of the Commission in 1896 to this United States 
court were destroyed in a fire which consumed the United States court-house at 
Ardmore in 1897. You expressed the belief that the original papers filed with the 
Commission on September 9, 1896, were thus destroyed. The clerk of the court, 
however, has furnished you with what purport to be copies of the original papers 
filed in this case. The copy of an alleged affidavit of Callie Newberry, which purports 
to have been sworn to August 31, 1896, is, in part, as follows: 

"I was born and raised in the Indian Territory. My father and mother's name is 
Ben and Mariah Love. My father, Ben Love, is a half-l)reed Chickasaw Indian. I 
have seven children living, their names are Sam, Willie, Louis, Calvin, Mariah, Lula, 
and Lydia Newberry." 

There is, you find, nothing in the records of the Commission to the Five Civilized 
Tribes or of your office which would in any manner indicate that any other persons 
were named in the original petition in 1896 and filed with the Commission to the 
Five Civilized Tribes on September 9 of that year than Callie Newberry. This 
would seem to be correct. 

Referring to section 4 of the act of April 26, 1906 (34 Stat. L., 137), you conclude that 
the copy of the affidavit of Callie Newberry of August 31, 1896, can not in any manner 
be considered as an application made under the act of June 10, 1896, for citizenslii]) 
in the Chickasaw Nation of her seven children. Sam, Willie, Louis, Calvin, Mariah, 
Lula, and Lydia Newberry, but that, admitting that the alleged affidavit of Callie 
Newberry can be construed as an application submitted on behalf of these persons 
for citizenship in said nation under the act of June 10, 1896, you are of the opinion 
that they would be bound by the decision of the Commission of November 10, 1896. 

You assert that the Commission had jurisdiction over these persons under the act 
of 1896 if they applied for admission to citizenship in said nation, and the decision 
of November 10, 1896, would have been determinative as to their right to citizen- 
ship in the nation. 

This does not altogether agree with the views expressed in the approved opinion 
of the Assistant Attorney-General of September 26, 1906, in the case of Hayn Nelms, 
in which it was stated that — 

"the adjudication or admission of Nelms to citizenship by intermarriage, made by 
the Commission in 1896, was, under the act of June 28, 1898, reviewable and subject 
to correction by the Commission. The Commission is a continuing administrative 
tribunal, having quasi-judicial powers, and the general rule is that such tribunals 
may review and correct their former judgments. * * * The act of June 28, 1898, 



C'liUCTAW AND CHICKASAW IXDIAN^S. Ill 

expressly granted to the Couimission power to scrutinize and to purge the tiibal rolls 
and to enroll only such as may have lawful right thereto. That included their own 
roll and their own action, as well as the rolls and action of the tribal authorities." 

The Indian Ofiice, in its letter of December 3, 1906, for reasons stated, concurs in 
your recommendation that the petition under considerati(m be denied. 

Section 4 of the act of .\pril 2(i, lf)0(j, is as follows: 

••That no name shall be transferred from the approved freedmen or any other 
approved rolls of the Choctaw, Chickasaw. Cherokee, Creek, or Seminole' tribes, 
respectively, to the roll of citizens by blood, unless the records in charge of the Com- 
missioner to the Five Civilized Tril)es show that application for enrollment as a citi- 
zen by blood was made within the time prescribed by law by or for the party seeking 
the transfer; and said records shall be conclusive evidence as to the fact of such appli- 
cation, unless it 1)0 .shown by documentary evidence that the Commission to the 
Five Civilized Tril>es actually received such applicatioTi within th(> time prescribed 
Ity law." 

It is not clear upon what grounds the principal applicant, Callie Newberry, in 
1896, based her claims (even admitting that such affidavit as that alleged to have 
been made Augu.st 31. 1896, was liled with the Commission to the Five Civilized 
Tribes), whether iiy virtue of her Indian blood or as a Chicka.saw freedman. She 
was 50 years of age at that time. It seems that none of the persons named in said 
alleged aflidavil has l)een enrolled or duly recognized as a citizen of the Chickasaw 
Nation by blood or asa freedman. except on the freedman roll made by the Commission 
to the Five ( ivilized Tribes. If the application of 1896 was for enrollment as a ( 'hick- 
asaw freedman. it can not. of course, be consid(>red as an a])p]ication for eiuollment 
of the parties as citizens l)y blood. Furthermore, it is considered tliat, even if the 
apj)licalion of J 896 could be accepted as an application for enrollment of the parties 
mentioiu'd in the alleged aflidavit of August 31, 1896. as citizens by blood, they 
elected to be enrolled on the freedman roll by the (.'ommi.'ision to the Five Civilized 
Tribes, and have forfeited anv right, if any they may have had. as citizen.-, by blood. 

Apparently, however, under no circumstances can they be enrolled as citizens by 
l)lood. as none of them have been duly recognized as such citizens l)y legally constituted 
authority, or enrolled as such citizen on the rolls of the Chicka.saw Nation. 

The i)ctiti(itis in the matter of Calvin Newberry et al., are denied, and also the other 
petitions and motions received with your letttT. You will make a separate report 
relative to the application of Delliert Green for transfer of his name from the roll of 
Choctaw freedmen to the roll of citizens l)y blood of the Choctaw Nation, mentioned 
in your letter of September 17, 1906. 

A copy of Indian Office letter of December 3, 1906 (Land 83245), is inclosed. You 
will oliserve that an en'or is made therein on page 11 as to the principal applicant to 
the application of 1896. 

The petiti(ms you wished returned to be returned to the court are inclosed. The 
other papers have been sent to the Indian Office. 

Respectfully, Jesse E. Wilson, 

Assistant Secretary. 

Through the Commis.sioner of Indian Affairs. 

The New York Indians v. the United States. No. 17861, Court of Claims. Decided 

May 15, 1905. 

OPINION' OF THE COt'RT. 

Nott, chief justice, delivered the opinion of the court: 

1. The cause of action confided to the jurisdiction of this court is thus defined by 
the act of 28th of January, 1893 (27 Stat. L., p. 426): The claim "of those Indianswho 
were parties to the treaty of Buffalo Creek, growing out of the alleged unexecuted 
stipulations of the treaty on the part of the United States." 

2. The unexecuted stipulations of the treaty on the part of the United States were 
these: By the treaty the United States agreed to set apart 1,824,000 acres of land "as 
a permanent home" for all the New York Indians." Such of the tribes as did not 
"accept and agree to remove to the country set apart for their homes within five 
years" were to "forfeit all interest in the lands set apart." None of the tribes moved 
or was removed to the country set apart, none of them made a demand or request for 
removal, some of them positively refused to remove when requested by agents and 
commissioners of the United States, others of them denied that they were parties to 
the treaty and averred that it had been procured in their names by corruption and 
fraud. After twenty-two years thus passed, the United States declared the lands open 
for public entry and sold them. But the treaty chanced to be in such form that the 



112 CHOCTAW AND CHICKASAW INDIANS. 

Supreme Court construed it to be a grant in presenti, and held that the United States, 
not having declared a forfeiture, the title remained in the Indians who were parties 
to the treaty, and that they were entitled to recover the avails of the land, amounting 
to $1,967,056. (170 U. S. R., 1; 173 id., 464.) 

The action, therefore, is substantially one to recover money had and received by 
the defendants to the use of the plaintiffs, and the primary question now before the 
court is. To whom shall this money be paid? Who were the parties, within the intent 
of the treaty, that are entitled to receive it? 

3. If the Indians had removed to the West, as contemplated by the treaty, the dif- 
ferent tribes would have received tracts of land proportionate to their numbers, and 
the members of the tribes would have held as communal owners. The present suit 
is not to recover land, but money, the proceeds of land, the title of which land was 
vested in the Indians as communal owners. The proceeds, therefore, in the matter 
of disposition must follow the rule which would have governed the disposition of the 
land. The Government, as guardian of the Indians, might have treated the proceeds 
as a fund to be retained Ijy the guardian, the income to be paid to the communal 
owners per capita, or it might have treated the funds as Indian lands have Vieen treated, 
by partitioning them by personal allotment among the communal owners. It has 
substantially selected the last course. The intent is that each communal owner of 
the land who would have been entitled under the treaty to 320 acres if the lands were 
allotted shall recover his proportionate part of the fund. 

4. In determining who are communal owners entitled to be paid per capita the 
coiut will follow Indian laws and customs so far as they do not come in conflict with 
the laws of the United States or the purposes of the treaty or with natural law and 
justice. 

The court will therefore adhere so far as possible to the fundamental Indian law 
of communal ownership, and will respect, as long as it does not conflict with the pur- 
poses of the treaty, the tribal determination of membership; but the court must at the 
same time recognize the fact that an Indian community is not the intact thing which 
it once was, and that communal ownership is not the well-deflned, ascertainable 
estate or interest which it was when there were real communities living in unity and 
communal possession on communal lands. The changes which had taken place in 
1860, when these lands were open to purchase, had even then nearly obliterated the 
old communal lines; and the changes which have since come have reduced some, if 
not all, of those communities to little more than voluntary societies held together by 
the annuities paid by the Government per capita. Thus, for instance, the Oneidas 
were once a powerful tribe of the Six Nations. They have been divided and sub- 
divided into the New York Oneidas, the Canadian Oneidas, and the Wisconsin Oneidas. 
and the New York Oneidas have been subdivided into two "Christian parties" and 
two "Orchard parties." There are also Oneidas living upon the Onondaga Reserva- 
tion and Oneidas living upon their own lands, and Oneidas to whom lands have been 
allotted in severalty and who have become citizens of the State of New York and 
who have ceased to be, in a political sense. Indians. To accept as final the determina- 
tion of such communities or societies on the question of a legal right to participate in 
the funds would be an evasion of judicial duty. It would be committing individual 
rights to the incompetent hands of those who have a direct pecuniary interest in the 
decision. Neither can the court accept the action of any community subsequent to 
the date of the treaty as being a legal determination on the question of communal 
membership ; and where it appears that since the execution of the treaty a communal 
roll has been tampered with and persons who were not Indians have been admitted 
to communal membership from improper motives and by arbitrary methods, the court 
will not regard them as beneficiaries under the treaty or as persons entitled to par- 
ticipate in the fund within the intent of the jurisdictional statute. 

5. The treaty of Buffalo Creek, as has been said, was a gi-ant in praesenti of the lands 
west of the Mississippi ; but it was also an executory contract between the parties. The 
intent was (which was the chief consideration for the contract) that all the New York 
Indians should remove west and should receive all the lands designated, and that they 
should do so within five years, and that if they should fail to do so the contract should 
come to an end by the United States declaring a forfeiture, in which case it was 
expressly provided that the Indians should "forfeit all interest in the lands so set 
apart." The lands so set apart were 1,824,000 acres, and the acreage was ascertained 
by taking the number of all persons belonging to the tribe, so far as known, amounting 
to 5,485, and adding thereto 215 (apparently for nonenumerated Indians), and allow- 
ing to each person 320 acres of land. 

6. The persons, therefore, to be removed to the West and to receive 320 acres of land 
each, or a communal interest therein, were the Indian communities (embracing by 
that term all persons affiliated with the Indians) whom the United States desired to 



CHOCTAW AND CHICKASAW INDIANS. 113 

rt'inovi' west of the Mississippi. Tht- United States were not interested in academic 
(jiU'stions of Indian l)l(ind or Indian citizenship. Whether an Indian family of half 
bloods residing on an Indian reservation in the State of New York t)r the State of Wis- 
consin were children of white men or of white women was, for the purposes of the con- 
tract, abstract, and irrelevant. That one such family should he called Indian and be 
allowed to go to the West to acquire lands of the United States, but that the other 
sh(ndd 1)0 called white and not be allowed to go or to acquire lands, would be an 
incongruity utterly foreign to the intent oi the agreement. 

It is true that the Iroquois, as with almost all Indian tribes, descent was through the 
iiKjther. Tlie Irixpiois woman was the daughter of the tribe unchangeably, irrevo- 
cably. She could not marry within the tribe, for all who were born of the daughtera 
of a tribe were brothers and sisters. When she married it was her husband who came 
to dwell in her tribe, and not she who passed over to his. If she mamed a white man 
she might live in his house and home, but when he died she could return to her kin- 
dred. Maid, wife, or widow, the Irocjuois woman was always a daughter of her tribe, 
affd her children were sons and daughters of her tribe; and they, with the sons and 
daughters of her tribal sisters, alone could be members of her tribe by birthright. 
Therefore it was that the daughters of the tribe were the mothers of the tribe, and they 
only. No man could ho a son of 'he tribe unless he was a son of a daughter of the tribe. 
The Indians, therefore, held that as a white woman was nfit the daughter of a tribe, she, 
on the death of her husband, had no tribe; that she was what slu> had been — a stranger, 
an alien, an outcast, and not an Indian. It followed that h'^r children were what she 
was. exiles without a tril>e. and strangers, not of Indian l)lood. 

This was the logical, the inexorable result of Indian law; but the practical results 
which would come from attempting to carry out the purpose of the treaty according to 
this Indian law instead of acconling to the manifest purjiose of the contracting parties 
is well illustrated in a case slated by claimant's counsel, A full-blooded Seneca Indian 
married a white woman. The daughter of that union was in fact one-half Indian, 
but according to Seneca law wholly white. She married a full-blooded Seneca, and 
her daugliter. three -fourths Indian, was still, by Seneca law. wholly white. Her 
daughter, tliree- fourths Indian, married a full-blooded Seneca, and her daughter, 
seven-eighths Indian, was still, according to Seneca law. wholly white. Finally the 
children of this woman, though their father might l)ea full-blooded Seneca Indian, and 
they have lifteen-sixleenths Seneca Idood in their veins, would still, in Indian legal 
estimation. l)e wholly white. 

7. In what manner the numbei-s of the different tribes set forth in Schedule A, 
annexed to the treaty, were ascertained is now unknown; Init it wa,'; for the interest of 
the United States that all ])ersons aliiliated with an Indian community should go, and 
it was for th"- interest of the Indians that there shovdd be land enough for all. Whether 
the census ex Schedule .\ included while wives and their children is not certain, but in 
view of the intent and nurpose of thc> treaty it nuist be presumed that it did, and it is 
certain, apart from svuh i)resumption, that there was a considerable margin of land, 
68.800 acres, reservi'd for the IndiaTis over and above the sum total of population enu- 
merated in Schedule A. Such being th;' manifest purpose of the treaty, and such the 
means for carrying it into effect, some claimants can not now be allowed to come in and 
say that the sum total of th<> acreage now represented by the proceeds of land (.?! ,967,05(i) 
was intended for only such ])ersons as were technically citizens or conununal owners 
in the Six Nations. In detenuining who were the persons termed Indians within the 
intent of the treaty, the court must re,><ort to the actual comm\inities then existing, so 
far as they can be ascertained, and uuist carry out the obvious intent of the treaty with- 
out being limited by Indian laws or customs which would defeat its chief purpose. 

8. The two imjjortant dates in this case are 1838, when the treaty was entered into, 
and 1800. wh<'n the United States opened the lands to public entry and deprived the 
Indians of their title without having declared a forfeiture. If. shortly after the sign- 
ing of the treaty, all of the Indians had been removed to the West and all of the tract 
had been tunied over to them, no one can doubt but that the United States would have 
required and the Indians wovdi-1 have consented to the removal of eveiy member of 
each Indian conununily without regard to ])lood or citizenship or the Indian law of 
descent; and if shortly beff)re 1800 the Indians had then determined to go West, it can 
not be doubted but that the United States would have expected and required that all 
of the Intlian conuuunities as then existed should remove if all of the land was to be 
enjoyed by them. 

During that twenty-two years there was disintegration and change in each commu- 
nity, and during that twenty-two years the agreement was kept alive by the inaction 
of the parties, .by the failure of one of them to declare a forfeiture. The question, 
"Who are the community?" continued during that twenty-two years, and it wotild 

S. Doc. 257, 59-2 8 



li-A CHOCTAW a:N'D CHICKASAW INDIANS. 

■have Ix'cu answered at the end as at the heginiiiii^. If, in IS59 hotli parlies had deter- 
• mined to carry the treaty into effect, there wouhl iiave remained Ihe same inlont 
which existed when the treaty was made — tliat all persons attached to an Indian com- 
mnnity shonld <=;o and should be provided for. The I'liited States wished the one; 
the Indians expected the other. Oonseqnently, the court must adopt a rule of descent 
:0r participation which would embrace all i)ersons whom it was the j)olicy of the United 
iStates to remove; and this rule being ex necessitate rei, once established must continue 
A court can not have one rule for one period of time and another for another period of 
tlhie. The white wife and her children born between 183S and 1860 were as nuuh 
Indians within the intent of the treaty as any full-blooded Indian in the Six Nations; 
'and what was the rule during that period of time must continue to be the rule up to the 
■■time of the jiulgment or the satisfaction of it; that is to say, the children of white 
I'mothers and Indian fathers aliiliated with the tril>es must be reckoned as Indians. The 
court must look upon the community and its meml)ers as such, and can not turn aside 
■into the genealogy of individuals or be turned aside by the peculiarities of Indian laws 
land customs. This is not a question of Indian citizen.ship or tribal custom or com- 
munal ownershij) in Indian property, V)ut simply a question of contract of the subjoct- 
;matter and piu-pose of a contract, and of the intent of those who entered into it. 

9. The treaty of Buffalo Creek was between nine tribes, bands, or subdivisions of 
, Iildians. signatories to the treaty as such. The present consideration moving to the 

United States from the Indians was the cession by these " several tritx's of New York 
'Indians" to the United States of all their right, title, and interest to certain lands 
secured to them at (ireen Bay, Wis., by the treaty of 18:^1. "In consideration of the 
a'bove cession and relin(|uishment, and in order to manifest the deep interest of the 
-. United States in the future peace and prosperity of the New York Indians, " the United 
• States agreed to set apart a tract of country west of the Slate of Missouri " as a ])enua- 
i nent home for all the New York Indians now residing in the State of New York, or 
in Wi-sconsin, or elsewhere in the United States, who have no permanent homes." 
! Annexed to the treaty is a " census of the New York Indians as taken in 1887, '' made 
■before the execution of the treaty (Schedule A). This refers more particularly to resi- 
dence and contains eleven subdivisions of New York Indians, Init all of them residing 
in New York and Wisconsin. 

' Who, then, are the beneficiaries under the second article of the treaty? Primarily. 
I of course, the New York Indians who executed the treaty " now residing in the State of 
New York or in Wisconsin;" Init the treaty adds an ambiguous term, "or elsewhere 
.•in the Ignited States," with an aml)iguous limitation, "who have no permanent 
I homes." 

■ The primary purjiose of the treaty being to remo\c all Indians from the East to the 

■ West, and the secondary purpose to gather up New York Indians who might not be 
. residing in New York or Wisconsin but who had no fixed iloniicile or no affiliation with 

■ other tri])cs (in the words of the treaty, who had "no permanent homes"), it must be 
iheld that such persons, and only such persons, are the beneficiaries and entitled to par- 
ticipate in the fund. That is to say, Indians who had acfjuired a permanent home with 
other tril)es or who had become more or less afliliated with them, or who were not repre- 

: sented by signatories to the treaty, or who did n(;t reliiKpiish lands in \\'isconsin, or who 
(did not signify an intent to return to a New York tribe or to actually remove to the 
ceded lands before IStiO, can not be regarded as "Indians who were parties to the treaty 
of Buffalo Creek " within the intent of the jurisdictional act. By the term " permanent 
homes" we understand something in the nature of domicile, and by a change of domi- 
cile we understand that such Indians lost their old domicile and severed their con- 
nection with their former tribe and ceased to be communal owners in tribal property. 
A more specific designation can be given, tint this states the principles upon which 
the ruling will rest. 

10. The Oneidas, of Ontario, Canada, were domiciles and living in New York in 

■ 1838, and were then parties to and beneficiaries under the treaty. In 1842 they sold 
their lands in New York and moved across the border into Canada. Tlie number who 
went (320) and the number who remained (300) were about equal. Their going was 
before the breach of the agreement and while the Go^"ernment was anxious and will- 

. ing to remove all New York Indians to the West. Did they, by moving across the 
border, forfeit all rights to be removed? Or were they free to move back across the 
border prior to 1860 and be among those who might be removed west of the Mississippi? 
And what rights have they within the intent and meaning of the decision of the 
■ Supreme Court? 

The judgment ($1,9()7_,056) which the Supreme Court has directed in favor of the 

, claimants represents 1,824,000 acres of land, reserved by the treaty of. 1838, and those 
1,824,000 acres of land represent the 5,485 Indians enumerated in Schedule A of the 
treaty and 215 Indians not envunerated in the schedule. The Supreme Court has 



CHOCTAW AND CHICKASAW INDIANS. 115 

decided that the fhiiiuaiits are entitled to recover this gross amount of $1,967,056, but 
has not directed this court to so distril)ute it that one man shall recover another man's 
money or that one portion of a tril)e shall recover the damages suffered by another por- 
tion. It did lie in the mouth of the defendants, the United States, to say that the 
Oneida-s in Canada had forfeited their right to recover, hut it does not lie in the mouth 
of the other Oneidas to say that they are entitled to l)oth their own and the others' 
damages. 

If the :W0 Oneida.s who remained in New York had been removed west of the Missis- 
sippi immediately after the 320 passed over the border into Canada, it is inconceivable 
that they would have l)een awarded land for 620 Oneidas. If the Oneidas of New 
York have no right to n-cover for the lands of the 320, has the Government done any- 
thing to declare a forfeiture on the ])art of the 320? 

Our Indians are and have been the wards of the United States, and the Indian has 
no right of exijatriat ion. Whether they may or may not leave the country is a question 
of Indian i)olicy. In Sitting liulTs ca.se they removed to Canada with the intent of 
remaining there, and became domiciled so far as Indians could be. The Indian policy 
required that they sh(nild be brought back, and they were brought back. In the case 
of the Kickapoos. they removed to Mexico with like intent to remain and be dom- 
ic-iled there. The Indian policv required that they be brought back, and they were 
l)rought l)ack. In IM2 the Indian j)olicy might have required that the Oneidas be 
brf)Ught l)a(k. and if it had. they would have been brought back. They did not cease 
to be wards of the United States because they had cros.sed the border "and attempted 
to domicile lhem,><elves in a foreign country: and it was ex])re,s.sly held in the case of 
Lowe r. Kickapoos (37 C. Cls. R., 413l that "the Indians being "wards of the United 
States can not suspend that relation without the consent of the (lOvernmiMit." There 
was no law which ^)rohillited these Oneidas from returning: they had sold their land, 
but the Senecas might have thrown open their doors as did the Cayugas; the United 
States took no act to sanction their expatriation or to depriv(> them of their rights under 
the treaty, and those rights continued until the breach of the agreement in 1860. From 
an ecjuitable point of view it may be added that they did more to carry out the policy 
of the United Slates by removing from the State of New York than any of the Indians 
who are now re])resente(l in this court. 

Till' facts to be noted in relation to these Oneidas of Ontario are these: There was 
no individual emigration: it was not the ca.se of an individual here and there with- 
drawing Iiim.self from the community and ceasing to be a niemb(>r of it. leaving the 
community intact. On the contrarv. In' communal consent a part of the tribe sep- 
arated from the other part, taking with them their portion of the cimmmnal property. 
Politically they were not expatriated: they did not become citizens of Canada. Some 
of them returned to the Slate of New '^'ork. and some of thcin returned to the United 
Stat<'s. going to Wiscimsin. 

It is settled by the decree of the Supreme Court that these Indians had acquired in 
1K3S an undivided legal estate in the western lands. It ,s(>ems toleral)ly clear that 
tin- se])aralion of these Indians as a distinct part of the Oneida community t)y mutual 
consent, retaining their share of other communal property, did not work a transfer 
of their interest in the lands west of the Mississippi to that part of the community 
which remained behind, .\fter the decision of the Supreme Court it can not be said 
that the United Stales dec-lared a forfeiture against them, either because they removed 
to Canada or because they failed to remove west of the Mississippi. How, then, could 
their title have been divested, with no act of forfeiture on the part of the United 
States? It may lie said that their removal from the guardianship of the United States 
created a personal di.<ability to maintain an action against the United States. This 
may l)e true, and might perhaps be u])held if the United Stateshad .said .so. Tlu effect 
of the statute is to allow all of tlic Indians to recover for all of tlie land sold, and the 
court can neither .say tliat a portion of the Indians may recover for all of the land .sold, 
nor say that the land of some of these Indians has, in .some indescribable way, become 
forfeited to the United States, nor that some Indians who were parties to the treaty 
of Buffalo Creek are tiot to be admitted within the jurisdiction of the court. 

n. The rolls prepared under the direction of the Secretary of the Interior in this 
case would l)e ab.solutely right and accurate if the questions in the case were those 
of Indian citizenship or communal ownership, or related exclusively to Indian property 
and rights. 

The Court appreciates the work done by direction of the Secretary of the Interior, 
and regrets tliat there should be a difference of opinion as to the distribution of the 
fund: but for the rea.«ons hereinlx'fore given the court can not regard this as simply a 
distribution of Indian property l)y Indian methods according to Indian law and at the 
dictation of Indian communities. The court, acting judicially, must be controlled by 
the purpose of the treaty and the terms of the jurisdictional act. It can not exclude 



116 CHOCTAW AND CHICKASAW INDIANS. 

from i"olls Indians who were or whose ancestors were parties to the treaty of Buffalo 
Creek, and it can not admit as beneficiaries Indians who were not parties to the treaty 
of Buffalo Creek and whose ancestors were not. Neither can the court uphold the 
unsatisfactory, if not fictitious rolls which some of the parties have framed, nor can 
the court allow Indian law or custom or decision to determine who shall participate 
in the distribution of this fund, and in effect decide who were persons intended to be 
removed from New York and Wisconsin to the country west of the Mississippi. 

For the reasons subsequently stated the court is also of the opinion that the rolls by 
separate tribes or bf)dies of commimal owners, giving different amounts to the mem- 
bers of different communities will have to be so recast as to bring all participants to one 
common amount. 

But the court is of the opinion that the limit set by the Secretary of the Interior 
within which parties were required to appear and present their claims is sotmd in 
principle, and that the limit named by him. the 3Jst of December, 1901. must be 
upheld. When a fund is to be distributed equally among many persons it is inevi- 
table that there must be a day of distribution; and where the fund to be distributed 
is communal property it is likewise inevitable that the day of distribution Tuust be 
one arbitrarily fixed, which will enable the officers of a court or other custodians of ttie 
fund to ascertain the number of recipients and the amount of expenses which will be 
a charge upon the fund, and to ascertain the names and individual rights of thp recip- 
ients. The court regards the action of the Secretary in the .steps taken by him to 
notify parties to come in and in the selection of the day named as not only reasonable, 
but as eminently ju.st and wise. 

12. The most doul)tful and most perplexing question in this case (which is crowded 
with perplexing questions) is, "Upon what basis shall the distribution of the fund be 
made?" Three have l)een suggested. 

The first is to regard the communal property as having vested personally in the 
communal owners at the time when the treaty was executed (or perhaps, more properly, 
at the time when the United States sold the lands), and then to trace down, individu- 
ally and personally, per stirpes, the descendants of those original owners, and decree 
payment to them per capita in the different amounts which family changes and vicissi- 
tudes must have brought about. 

There are two objections to this. When it is remembered that communal ownership 
extends equally to men and women and children and infants in arms it is apparent 
that to determine with precision who wtTe the communal owners in different groups 
and scattered homes of more than 5,000 Indians on a given day forty-five or sixty- 
seven years ago would be an absolute impossibility. The other objection is that this 
fund, being Indian property, the court should, so far as possible, conform to Indian law, 
and especially to that great fundamental principle of Indian law — communal and not 
individual ownership. 

The second basis is to take the census denominated "Schedule A," annexed to the 
treaty, as a guide, and to regard the Indians (5 485 in number) as forming 11 distinct 
comiiiunities and to apportion the fund among them in proportion to the number 
shown by the census, therel)y making 11 communal funds to be divided each among 
the individuals now forming actually or constructively these 11 communities. 

The third basis is to regard all of the Indians who were parties to the treaty as one 
community, and to distribute the fund among all the Indians and descendants of 
Indians now existing, share and share alike. 

As to the second basis, it may be conceded that the treaty (article 2) contemplated 
two things, viz, that the Indians would actually remove to their future home beyond 
the Mississippi and that the lands there .should be "divided equally among them ac- 
cording to their respective numbers, as mentioned in the schedule hereunto annexed!*' 
(the census, Schedule A). Previously, in the same article, the treaty had mentioned 
1 ,824,000 acres of land as the tract granted , "being 320 acres for each soul of said Indians, 
as their numbers are at present computed." The numbers mentioned in Schedule A 
multiplied by 320 give an acreage of but 1,755,200 acres, leaving an excess of 68,800 
acres. This excess was probably intended for Indians wdio might have been over- 
looked in the enumeration of the census. It is at the same time manifest that all of 
t hese eleven communities could not be moved westward in one day and told to divide 
their lands among themselves in proportion to their respective numbers, but that 
they would be moved in small bodies, and on their arrival have allotted to them 
quantities of lands at the rate of 320 acres to each emigrant. Other provisions of the 
treaty also show that it was contemplated that some of the tribes might not remove; 
and as to them the third article provided that those who did not remove " within five 
years, or such other time as the President may from time to time appoint, shall forfeit 
all interest in the land so set apart," In a word, the grant was en bloc, but the treaty 
contemplated the removal of nine or eleven distinct communities, with distinct allot- 
ments of land in proportion to their numbers. 



CHOCTAW AND CHICKASAW INDIANS. 117 

The Secretary of the Interior has proceeded upon this theory in preparing rolls in 
this case; and if the fund is to be distributed only among those Indians who were 
annuitants and on the rolls of the Indian Office, this theory would have very strong 
support in those facts. The objections to it are, first, that it ends in an inequitable 
result. According to it one community of Indians — the Oneidas — will receiye more 
than $1,000 per capita, and another — the Stockbridges and Munsees — only $147 per 
capita. It would l)e irrational to attribute this immense difference of 747 per cent 
to natural causes. It is manifest that there has been an error in the past computation, 
or that there has been emigration from tribe to tril^e. or that something other than 
natural growth has brought about this immense disparity in the result. 

Another objection to the second basis relates back to the true intent of the treaty. 
that true intent unciuestionably was that every Indian emigrant or beneficiary imder 
the treaty should receive at least 320 acres of land, without reference to the number 
of persons in his tribe or the number of members in his family. That the true intent 
was not i-arried out was due to the inaction of both parties. The treaty contemplated 
keeping the tribes on separate allotments of land, liut the primary and paramount 
intent was. as stated, that each Inilian lieneficiary should receive at least 320 acres of 
land. The provisions for segregating the triljes and giving each his own share, 
founded upon 320 acres for each individual, were not antagonistic or alternative to the 
primary intent, but in furtherance of it. If the treaty had been carried into effect 
within five years, as contemplated, there would have been no dispute whatever upon 
this point. Such being the intent of the treaty, the question is whether inaction 
of the parties and the sale of lands and the substitution of the fund for the land are to 
change this i)rimary basis of distribution. 

The conuiiunal changes refeiTcd to in subdivision 2 of this opinion — changes 
which have taken ])lace since 1838 — constitute, in the opinion of the court, an answer 
to this question. The most marked jtistice of which this distribution is susceptible 
will l)e attained by carrying it l)ack to the time of the treaty and doing now as 
would have been done then, treating every individual Indian as every other individual 
Indian is treated. If these Indian communities had continued to exist as they once 
existed, each community occupying its own territory and every daughter of every 
tribe, and they only, remaining always the only daughters and the only mothers of the 
tribe, it would have V)een feasible to distribiite the fund accordingly, disregarding the 
minor changes made by prosperity or adversity and natural growth or natural decay. 
But in the existing condition of affairs, it seems wisest and most just to make the 
first liasis of distribution the final basis of distribution — to distril)ut(> the fund as the 
land would liave l)een distril)ut('d in 1838 — ecpially to each and all. 

A decree will l)e entered in this case following the form of that which was entered 
in the case of Whitmire, trustee v. the Cherokee Nation (30 C. Cls. R.. 190) and in 
accordance with the directions heretofore set forth in this opinion. (Petition was 
filed with the Sui)rem(> Court of the I'nited States praying for a writ of mandamus 
directed to the Court of Claims to compel a modification of the decree entered under 
the above opinion. The filing of the petition was allowed by the Chief Justice during 
vacation and an order was issued directed to the Court of Claims to stay the judgment 
above set out. On consideration of the petition by the full bench of the Supreme 
Court it was denied and the judgment and decree of the lower court therefore affirmed.) 



Dep.\rtmext of the Interior, 

Washington, January 12, 1907. 
Sir: Senate lull 7.300. wliich you referred to this Department with request for report 
thereon for the information of your committee, was .fent to the Commissioner of Indian 
Affairs for examination and report. His report of January 3, 1907, a copy of which is 
inclosed, gives a very complete history of the matter involved including references 
to congressional action, the views of the courts, the tribal authorities, and of this 
Department. The whole matter is so fully presented in this report that it is not 
deemed necessary to elal)orate thereon. 

The Department concm-s in the conclusion of the Commissioner of Indian Affairs 
that no change should be made in existing law relating to the enrollment of Choctaw 
and Chicka.saw freedmen. and I therefore recommend that the bill do not pass. 
The papers are herewith. 

Very respectfully. E. A. Hitchcock, 

Secirtary. 
The Chairman ok the Committee on Indian Affair.s, 

United States Senate. 



118 CHOCTAW AND CHICKASAW INDIANS. 

Department of the Interior, 

Office of Indian Affairs, 

Wasldngton, January S, 1907. 

Sik: Thcollice is in receipt ol' Depart incnl letter dl' l)eeeinl)er 19, 1906, transmitting 
for iumiediate report a communication from the chairman of the Senate Committee 
on Indian Affairs, dated December 18, 1906, inclosing S. 7300, l)eing "A bill to amend 
an act entitled 'An act to provide for the final disposition of the affairs of tlie Five 
Civilized Tribes in the Indian Territory, and for other purposes,' approved April 26, 
1906." 

The bill is as follows: 

"Be it enacted by the Senate and House of Represent atirefi of the United States of America 
m Congress assembled, That section four of an act entitled 'An act to proviih' for the 
final disposition of the affairs of the Five Civilized Tribes in the Indian Territory, and 
for other i)urj)()ses,' approved Ai)ril twenty-sixth, nineteen hundred and six, be, and 
the same is lierel)y, amended ])y adding the following proviso at the end of the section: 

"And provided further, That the Secretary of the Interior is hereby authorized and 
directed to transfer from the Choctaw and Chickasaw freedmen rolls to the rolls of 
citizens by blood of said nations the name of any person who is of Indian blood or 
descent on either his or her mothfn-'s or father's side, as shown by either th(> tribal 
rolls, the records prepared l)y and in the custody of the Commission to the Five Civ- 
ilized Tribes or the Depaitment of the Interior, or by any governmental records in 
the possession of any bureau, division, or commission of any of the De]iartments of 
the Government, or any of the courts of Indiaii Territory: Provided, however. That 
nothing herein shall be construed so as to permit th(> tiling of any original application 
for the enrollment of any person not heretofore, and at the time of the passage of this 
act, enrolled as a freedman of either the Choctaw or Chickasaw nations or who has 
an undetermined application for such enrollment now pending, it being the purpose 
of this act to pro\i<le only for a correction of the enrollment of persons of Choctaw or 
Chickasaw Indian blood who have been enrolled as freedmen of said nations, and no 
limitation of time within which to file original ap])lications, or to perfect appeals, 
heretofore fixed l)y law, shall be construed as a bar to rights conferred by this act." 

The purpos(> of the bill seems to be to change the j)rovisions of existing law, and, 
as its provisions are mandatory, to take from the Department all discretion in the 
matter of enrolling j)ersons of Indian and freedman descent and compel their enroll- 
ment as citizens by blood of the Choctaw and Chickasaw nations. 

Section 4 of the act approved April 26, 1906 (34 Stat. L., 137), provides that no name 
shall be transferred from the approved freedman or any other roll of the Choctaw or 
Chickasaw nations to the blf)od roll "'unless the records in charge; of the Commis- 
sioner to the Five Civilized Tribes shows that ap[)lication for enrollment as a citizen 
by blood was made within the time prescribed by law, by or for the party seeking 
the transfer, and said records .shall be conclusive evidence as to the fact of such appli- 
cation, unless it is shown by documentary evidence that the Commission to the Five 
Civilized Tribes actually received such application within the lime prescribed by 
law." 

\\Tiatever right the Choctaw and Chickasaw freedmen have to share in the distri- 
bution of the land of the Choctaw and Chickasaw nations is derived from the provi- 
sions of the treaty of A])ril 28, 1866 (14 Stat. L., 769). subject to such action as was 
subsequently taken by the legislative bodies of the respective tribes and by Congress. 

Article 3 of said treaty ]>rovides in part that: 

"The Choctaws and Chickasaws. in consideration of the sum of three hundred 
thousand dollars, hereby cede to the United States the teiTitory we.st of the 98° west 
longitude, known as the leased district, provided that the said sum shall be invested 
and held by the United States, at an interest not less than five per cent, in trust for 
the said nations, until the legislatures of the Choctaw and Chickasaw nations, respec- 
tively, shall have made such laws, rules, and regulations as may be necessary to give 
all persons of African descent, resident in the said nations at the date of the treaty of 
Fort Smith, and their descendants, heretofore held in slavery among said nations, 
all the rights, privileges, and immunities, including the right of suffrage, of citizens 
of said nations, except in the annuities, moneys, and public domain claimed by, or 
belonging to, said nations, respectively; and also to give to such persons who were 
residents as aforesaid, and their descendants, forty acres each of the land of said nations 
on the same terms as the Choctaws and Chickasaws, to be selected on the survey of 
said land, after the Choctaws and Chickasaws, and Kansas Indians have made their 
selections as herein provided." 

The act of Congress approved May 17, 1882 (22 Stat. L., 68, 73), provides, among 
other things: 

"That either of said tribes (Choctaw or Chickasaw) may, before such expenditure, 
adopt and provide for the freedmen in said tribe in accordance with said third article, 



CHOCTAW AND CHICKASAW INDIANS. 119 

and in such r-aso the money herein provifled for such education in said tribe shall he 
l>ai(l over to said tribe, to be taken from the unpaid balance of the thi-ee hundred, 
iliousand dollars due said tribe." 

Pursuant to the provisions of said act. the national council of the Choctaw Nation. 
passed an act as follows, which was approved by the principal chief on May 21, 1883: 

"Sec. 1. Be it enacted by the general coimeil of the Choctaw Nation assembled. That 
all persons of African descent resident in the Choctaw Nation at the date of the treaty 
nf Fort Smith. Sept. 13. LSfio. and their descendants, formerly held in slavery by the 
Choctaws or Chicka.>^aws. are hereby declared to Ix- entitled "to and invested with all' 
the rights, privileges, and immunities, including the right of suffrage, of citizens of 
the Choctaw Nation, except in the annuities, moneys, and the public domain of. 
tlie nation. 

"Sec. 2. Be it further enacted, That all said persons of African descent as aforesaid, 
and their <U'.scendants. shall be allowed the same rights of process, civil and criminal, 
in the s(>veral courts of this nation as are allowed to Choctaws; and free protection 
of person and property is herel>y granted to all such persons. 

"Sec. 3. B< it fmlhtr enartrd. That all said persons are hereby declared to be enti- 
lli'd to forty acres each of the lands of tlie nation, to be selected and held by them 
un(h'r the .same title and upon the same terms as the Choctaws. 

"Sec. 4. Be it further enacted. That all said persons aforesaid are hereby ch-clared to 
be entitled to equal educational privileges and facilities with the Choctaws, so far as 
neighborhood schools are concerned. 

"Sec. 5. Be it further enacted. That all said persons as sliall elect to remove and do 
actuallv and permanently remove from the nation are herel)y declared to l)e entithnl 
to one Jiundrcd dollars per capita, as i)rovided in said 3rd article of the treaty of 186(5. 

"Sec. •!. Be it further enacted. That all ,«aid perscms who shall decline to become citi- 
zt'iis of tli«' Choctaw Nation and who do not elect to remove permanently from tlie 
nation arc luTelty declared t(t be imruders (m the same footing as other citizens of the 
I'liited States resident herein, and subject to removal for similar causes. 

"Sec. 7. Be it farther enacted. That intermarriage with such freedmen of African 
descent who were formerly held as slaves of the Choctaws and have become citizens, 
shall not confer any rights of citizenship in this nation; and all freedmen who have 
married f)r who may hereafter marry freedwomen, who have become citizens of the 
<'hoctaw Nation, are subject to the permit laws and allowed to n^main during good 
beha\ior only. 

"Sec. 8. Be it further enacted. That all such persons of .\frican descent who have 
become citizens of th(> Choctaw Nation shall l)e ciuitlcd to hold any odice of trust or 
]>rolit in this nation, except the office of principal chief, and district chiefs. 

" Sec. 9. Be it further enacted. That the national secretary shall furnish a certified 
copy of this to the Secretary of the Interior. 

"And this act shall take effect and be in force from and after its passage." 

On October 2(). 1883, the principal chief of the Choctaw Nation approved an act of; 
t he council of that nation repealing section 8 f)f the act of ^h^y 21 . 1883. Subsequently 
a cpiestion arose as to whether the act of the national council of the Choctaw Nation 
adoi)tiiig the freedmen was sullicient f()r the ])urj)ose intended. The Secretary of the 
Interior, under date o| February 2(i, 1884, said: 

"I am of the oi)inion that the statute now under consideration, as amended by the 
subsequent law referred to. is a rea.sonable, substantial, and .sufficient compliance with 
the provision made therefor in the act of May 17, 1882 (22 Stat. L., 73), and of the thirdi 
articde of the treaty therein referred to." 

An act of the national council of the Choctaw Nation, approved l)y the princi})al 
chief on October 30, 1888, is as follows: 

"1. Be it enacted by the general coiincil of the Choctaw Nation assembled: It shall not 
be lawful for a Choctaw and a negro to marry; and if a Choctaw man or Choctaw 
woman should marry a negro man or ni'gro woman, he or she shall be deemed guilty 
of a felony, and shall be proceeded against in the circuit court of the Choctaw Nation 
having jurisdiction, the same as all other felonies are proceeded against; and if proven 
guiltv shall receive fiftv laslu's on the bare back." (See Choctaw Laws, 1894 edition,. 
page20(i.) 

The foregoing. 1 believe, conclusively shows that it was never the intention of the 
Choctaw and Chickasaw Indians or the Government that persons who descended 
from former slav(>s of Choctaw or Chickasaw Indians, even though such persons are 
in jiart of Choctaw or Chickasaw Indian blood, should be allowed to share in the Choc- 
taw and Chickasaw property in excess of an allotment of 40 acres each. 

Plowever. with reference to the enrollment of freedmen in these nations, I have 
the honor to invite vour attention to the acts of June 28, 1898 (30 Stat. L., 495), and 
July 1, 1902 (32 Stat. L.. 041). Section 21 of the act of June 28, 1898, provides that 



120 CHOCTAW AND CHICKASAW INDIANS. 

(he Coininission to the Five Civilized Tribes "shall make a eon^eet roll of all Choctaw 
freedmen entith'd to citizenship under the treaties and laws of the Choclaw Nation, 
and all their descendants born to them since the date of the treaty," and declares 
(hat a correct roll shall be made of the Chickasaw freedmen entitled to "rights or ben- 
efits'' under the treaty of 1866 "and their descendants born to them since the date 
of said treaty," and that forty acres of land, including their present residences and 
improvements, shall l)e allotted to each, to be selected, held, and used by them 
imtil their rights under said treaty shall be determined in such manner as shall b(,' 
hereafter provided by Congress." 

Section 29 of this act says: "That the said Choctaw and Chickasaw freedmen who 
may be entitled to allotments of forty acres each shall be entitled each to land equal 
in value to forty acres of the average land of the two nations." 

No change in the manner of em-olling and making allotments to Choctaw and C'hick- 
asaw freedmen was made by the act of July 1, 1902, but section 36 thereof authorized 
suit to l)e brought in the Court of Claims for the purpose of determining the right of 
the Chickasaw freedmen to share in the distril)u1ion of the lands of (he Choctaw and 
Chickasaw nations. 

An appeal to the Supreme Court was provided i'<ir and it was declared (hat allnl- 
ments should be made to "Chickasaw freedmen and their descendants as ]>rovided 
in the Atoka agreement" (act of June 28, 1898), and that if (lie courts found (hat. (he 
('hickasaw freedmen were not entitled to allotments independently of the act of 
July 1, 1902, the appraised value of the land, "for the purpose of allotment," allotted 
to the Chickasaw freedmen should be asecertained an<l paid to the nations by the 
United States. 

As hereinbefore said, (he projxjsed legisladon is direc(ory and if enac(ed will re((uire 
(hat any person of freedman and Indian descen( who has be(>n enrolled as a freedman 
or has an applicadcm for such enr()llmen( pending a( (he (ime of (he approval of the 
act shall be enrolled as a citizen by l)lood. This measure seems to be l)ase(l on the 
conclusions reached in the Joe and Dillard Perry case. On November 26, 190-t. (his 
oflice exjm'ssed (he opinion (hat under (he r)(>])artment's holding of July 11, 1903, in 
the John W. Shirley case, who was an applicant for enrollmen( as a ci(izen by blood 
of the Cherokee Na(ion, Joe and Dillard Perry wer(» en(i(hnl (o have (heir names (rans- 
ferred fr.ini (he freedmen to (he l)lood roll of (h(^ Chickasaw Na{ion. Joe and Dillard 
Perry are the children of Eliza and Charley Perry. Eliza Perry, it seems, is one- 
fourdi Indian, one-fourth whi(e. and one-half negro, or one-half white and one-half 
negro-Chickasaw freedman. Her exact descent can no( be de(ermined from (he rec- 
ord in (he case. The father. Charley Perry, is a recognized cidzen by blood of the 
Chickasaw Nation, and (he record in the case does noi show whedier his Chickasaw 
blood is mixed. Eliza and Charley Perry c()habi(a(ed as husband and wife and Joe 
was born on March 20, 1892. Dillard was born on May 5. 1894. 

On February 21. 1905, the Assistant Attorney-Genf'ral. after discussing the case at 
length, said: 

"I am. therefore, clearly of the opinion tha( a])pli(ants are endded (o be (ransferred 
to the of roll of Chicka.saws by blood." 

In opinion of November 11. 1905, he said: 

"I therefore am advised of no objection to the marriage of these parties, except the 
admission of the mother that about two years liefore meedng wi(h PeiTy. and about 
four years prior to her marriage to him. she was married (o James, who may ha^e then 
been living, though (ha( fac( is left in doubt. I'pon such facts I was, Fel)ruary 21, _ 
1905. of opinion that Joe and Dillard Perry were shown tf) be descendants of 
Charley Perry, a recognized citizen of the Chicka.-iaw Nation, born within the nation 
and to its allegiance." 

And, further: 

"In the Chickasaw Nation freedmen are not citizens, but are a class of noncitizen 
persons resident within the Chickasaw Nation to whom certain rights are granted 
by the nation and the Congress of the United States. Were they a class of citizens, 
their applicaticm would not be, within the meaning of the limitation in the act of 1902. 
pupra, one for enrollment, but for correction of (he i-ecord by their removal from one 
class of citizens to another class of citizens. Freedmen not being citizens of the 
Chickasaw Nation, the application can not be considered as one to correct the record, 
but to admit and enroll them into a citizenship to which they previously did not belong 
and their right to which the record shows had not l)een a.<serted or applied for. Their 
application was therefore within the limitation of section 3t of the act of 1902. supra, 
and was made too late. 

******* 

"The applicants are enrolled freedmen. and having selected allotments as such, 
were entitled to hold them until their right to enrollment as citizens was fully estab- 
lished, and their allotments, if canceled, should be reinstated." 



CHOCTAW AND CHICKASAW INDIANS. 121 

It will ))C observed that in this opinion it was held that these applicants were not 
entitled to have their names translened from the freedmen to the blood roll solely 
because it was not shown at that time that application for their enrollment as citizens 
Viy blood was made within the time prescrilied 1>y law. 

It was subsefjuently shown that the mother of these applicants made application 
for tlicir enrollment as citizens by blood in 1896, in accordance with the provisions 
<.f the act of June 10. 1896 (29 Stat. L. 339). and that their application had been 
"impliedly denied.'" On July 17. 1906, the Office transmitted the record relative 
to the application of Joe and Dillard Perry for a transfer of their names from the freed- 
men to the blood roll of the ("hickasaw Nation, and as it was shown that application 
for their enrollment was made by their mother in 1896 under the act of June 10, 1896 
(29 Stat. L.. 339), said that under the opinions of the Assistant Attorney-General, 
of Februaiy 21 and November 11, 1905, the applicants were entitled to enrollment 
as citizens by Ijlood. and on September 26, 1906 the Assistant Attorney-General 
held that they "were not Ijarred by the former adverse decision of the Commission 
and are entitled to be enrolled as citizens of the nation to the allegiance to which 
they were born." 

The Supreme Court of the United States, in the case of The United States v. The 
Choctaw Nation and the Chickasaw Nation (193 U. S., 115), held that the Chickasaw 
freedmen were not citizens of that nation, and that whatever right they have to share 
in the dis1rib\ition of the land of the Choctaw and Chicka-^^aw nations is by virtue 
of the provisions of the act of Julv 1, 1902 (31 Stat. L., 641), "and not independently 
thereof." 

The foregoing has l)een Imiught to your attention at length in order that the facts 
a." to what has Ix'en done by Congress, the courts, and the tribal authorities, and 
what has lici-n said l>y the Deijartment and the Office on the subject, may be clearly 
before you and Comrress should a copy of this report be forwarded to that body. I 
shall iKiw (lis'uss the bill in a eem-ral way. 

As 1 have already said, whatever rights the freedmen have, either Choctaw or Chick- 
asaw, are ba.-cd on" the provisions of the treaty of 1866. and such subseciuent action as 
wa.s taken by Congress and tln^ trilial authorities, and it has always been the under- 
standing of this Oliice that a person who descended from a freedwoman was recognized 
bv the lriV)al aulhnrilios as a freedman, irrespective of the quantum of Indian blood he 
had. 

In the days of slavery a child followed the status of the moth(>r; that is, a child born 
of a free mother was free, but one born of a slave mother was a slave, and while it is 
probable that the iril)al custom, as understood by this Office, grew out of .slavery, it is 
the utiiveVsal custom among white peojile of the United Stales to recognize as a negro 
any person wlio is known to be in part of negro blood, no matter how small the degree 
of such blood may be. Hut in order to l)e absolutely certain as to the prevailing custom 
in the Choctaw and ('hicka.«aw nations, the (^flic'c. on December 26, 1906. wired the 
Commissioner to the Five <"ivilized Tril)es as follows: 

"Is it a fact that the tribal authorities of the ('h(»ctaw and Chicka.-^aw nations in 
enrolling pei-sons of freedman and Indian descent enrolled them as ficedmen, irre- 
spectiveOf wh(>ther the lree<lman descent was on th(> side of the father or mother: or 
did thev hold tliat children followed the status of the mother'.' Rush.'" 

To which the Acting ( 'ouuni.-^sioner replied, under dateof December 27, 1906, .saying: 

"Replying your telegram 26lh instant, tril>al authorities of Choctaw and Chicka- 
saw nations in'preparing tribal rolls em-oUed children of Indian women by freedmen 
fathers as Indians. Tribal rolls clearly indicate that children of mixed freedmen and 
Indian descent followed status of mother.'" 

I esiH'<'ially invite vour attention to the fact that Congress, by section 21, of the act of 
June 28, 1898, in directing the enrollmeiU of Choctaw freedmen, used the words: -And 
all their descendants born to them since the date of the treaty," and with reference to 
the eiu-ollmcnl of ("hickasaw freednuMi said: "And their descendants born to them 
since the date of .said treatv." . , 

While the words used authorizing the enrollment of Choctaw freedmen differ slightly 
from those directing the enrollment of Chickasaw freedmen. the meaning is the same, 
and it seems to have been the intention of Congress to declare that any person who 
descended from a Choctaw or Chickasaw freedman should be enrolled as a freedman 
and allowed to share in the distribution of the lands of the nations as such. 

Ten thousand one hundred and ninety-six persons have been enrolled as Choctaw or 
Chickasaw freedmen, some applicationsare still pending, and if any of them have been 
\injustly enrolled as freedmen. the law as it now stands clothes the Department with 
l)Ower .sufiicietu to transfer their nanu's from the freedmen to the blood roll and to 
enroll as Indians l)v blood thos(> whose ai)i)lications have not been passed on, if appli- 
cation for em-oUment by blood was made within the required time; so I do not believe 



122 CHOCTAW AND CHICKASAW INDIANS. 

that it would be wise at this late date, or just to the Choctaw and Chickasaw nations, 
for Congress to reopen the whole matter of the enrollment of Choctaw and Chickasaw 
froedmen, and declare that the Department arbitrarily (Miroll as an Indian by blood 
any person who is of Indian and freednian blood. 

The Choctaw and Chickasaw nations have l)een far more generous to their former 
slaves and their descendants than the white people have to their ex-slaves. They 
have allowed them an interest in their lands, which the white slave ownei's did not do, 
and have permitted them to use the lands of the nations for more than forty years with- 
out paying one cent of rent therefor, and it seems to me that when the custom of the 
tribes is considered, and the declaration of Congress with refeience to their enrollment 
given the weight to which it is entitled, and the fact recalled that the Choctaw freed- 
man had no rights in the lands of the nations until May 21, 1883. and the Chickasaw 
freedmen not until July 1 , 1902, any fair mind can only conclude that no change should 
be made in existing law relating to the enrollment of Choctaw and Chickasaw freed- 
men, and that the recognized custom of the Choctaws and Chickasaws, in force for 
years, should be followed in making the Choctaw and Chickasaw freedman rolls. 

I have the honor to recommend, therefore, that you advise the chairman of the 
Senate Committee on Indian Affairs that in the opinion of the Department substantial 
justice will be done the Choctaw and Chickasaw freedmen in the matter of their enroll- 
ment under the law as it now stands, and that the bill should not pass. 
Very respectfully, 

F. Vj. Leupp, Commissioner. 

The Secret.\ry of the Interior. 

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